CNN Seeks Dismissal of Video Privacy Class Action Appeal

CNN is attempting to get the Eleventh Circuit court to dismiss an appeal to revive a video privacy class action lawsuit that was dismissed by a lower court back in April.

CNN seeks to have the appeal dismissed before it is set to go to trial later this month.

In the original class action lawsuit, plaintiff Ryan Perry alleged that CNN’s app violated a federal law called the Video Privacy Protection Act, a law that regulates sharing information regarding video tape rental and sales records.

Subsequent court rulings expanded the scope of the Act to include DVDs and digital streaming video information.

According to Perry, CNN violated the VPPA when it shared video-watching data with their analytics provider, Bango. This allegedly included what Perry’s video privacy lawsuit described as “personally identifiable information.”

The court determined that CNN shared the MAC address and usage habits people who used the CNN mobile app.

The motion to dismiss the video privacy lawsuit cited an earlier case, Ellis v. Cartoon Network, Case No. 484. In this similar case, Cartoon Network was able to get a case dismissed on the grounds that the plaintiff could not prove that they had suffered any sort of concrete harm from the actions.

Additionally, the judge ruled that an Android ID – the non-Apple version of a MAC address—did not constitute personally identifiable information under the VPPA. Both Android IDs and MAC addresses are a string of random numbers that identify the device for transmission purposes. This case was dismissed in October of 2014.

CNN’s motion to dismiss the revival of this video privacy lawsuit further cited the Supreme Court case Spokeo v. Robins, which was decided one month after the Cartoon Network decision.

This case firmly established that a concrete injury has to be shown “even in the context of statutory violation” in the context of the VPPA. The motion to dismiss Perry’s video privacy lawsuit states that the Spokeo decision set a precedent that called for the dismissal of the suit.

Above and beyond the Spokeo‘s requirements of actual damage, other issues come up in the motion to dismiss the video privacy lawsuit. For one, the decision disputes that Perry even qualified as a renter or subscriber under the rules of the VPPA.

Again, the decision cited the Cartoon Network ruling, saying that Perry did not qualify as a renter or subscriber, as he only installed a free app which he could delete at any time, all of which undermined his standing as a subscriber under the VPPA.

If the motion is not accepted, the situation will go to a court on July 26.

Perry is represented by Jay Edelson, Rafey S. Balabanian, Benjamin H. Richman and J. Dominick Larry of Edelson PC.

The CNN Video Privacy Class Action Lawsuit is Ryan Perry v. Cable News Network Incorporated, Case No. 16-13031, in the U.S. Court of Appeals for the Eleventh Circuit.