Hulu Disclosed Users’ Viewing Habits, Class Action Lawsuit Says

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UPDATE 1: Judge denies Hulu’s motion to dismiss Hulu Privacy Class Action Lawsuit.

UPDATE 2: The Hulu privacy class action lawsuit was dismissed by a California federal judge on March 31, 2015. The plaintiffs filed an appeal on April 15, 2015.

UPDATE 3: On Oct. 23, 2015, both parties voluntarily agreed to drop the appeal to the Hulu video privacy class action lawsuit

Video-streaming website Hulu.com is trying to dismiss a class action lawsuit claiming the site discloses what subscribers watch to third parties without their written prior consent.

Six Hulu subscribers filed an amended class action lawsuit complaint in February saying the video site “repurposed” its browser cache so that marketing analyst service KISSmetrics could store their private data.

“Hulu’s online privacy policy is misleading in that it does not disclose the use of aggressive, rogue exploits of Plaintiffs’ and Class Members’ computer software to engage in widespread tracking and information sharing,” the amended Hulu class action lawsuit states.

The lawsuit claims Hulu and KISSmetrics created several shadow mechanisms for tracking and using software on subscribers’ computers in ways the software was not designed to be used and that subscribers would not reasonably expect it to be used.

“Hulu and KISSmetrics engage in these tracking activities regardless of any visitor’s browser privacy controls over accepting, blocking or deleting cookies,” the class action lawsuit continues.

The subscribers allege in the Hulu class action lawsuit that their private viewing choices were shared with Facebook, Google Analytics, Quantcast and other online market research and advertising companies without their permission, in violation of the Video Privacy Protection Act (VPPA).

The VPPA prohibits video rental companies from disclosing information about the movies people watch without their consent.

Hulu moved to dismiss the class action lawsuit, arguing that the Class cannot bring claims under VPPA because the VPPA “only regulates businesses that sell or rent physical objects,” and Hulu provides free streaming video content.

The Class fought back on Friday, saying in a filing that “Hulu misconstrues the VPPA,” which covers companies that rent, sell or deliver “prerecorded video cassette tapes or similar audio visual materials.”

“The issue in the VPPA is not the form or method of video delivery. Rather, the statute concerns the protection of records about the subscriber and what the subscriber viewed,” the Plaintiffs’ attorney wrote.

“Given its purpose, there is no basis to argue that the online transfer of video content falls outside the purview of the Act.”

In addition to asking the Court to deny Hulu’s motion to dismiss the VPPA class action lawsuit, the Plaintiffs’ attorney requested an opportunity to replead if the Court grants the motion.

The Hulu privacy class action lawsuit is brought on behalf of all individuals or entities in the U.S. who visited Hulu.com during the period from March 4, 2011 through July 28, 2011. It is seeking damages and restitution for violation of the VPPA, the Computer Crime Law, the Computer Fraud and Abuse Act, and more.

The case is In re: Hulu Privacy Litigation, Case No. 11-cv-03764-LB, U.S. District Court, Northern District of California, San Jose Division.