Hulu Privacy Class Action Lawsuit Dismissed by Federal Judge

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A California federal judge has dismissed a class action lawsuit filed against Hulu over privacy issues, saying that the video-streaming website didn’t know that Facebook Inc. was able to use its data to match users on the social media website.

U.S. District Judge Laurel Beeler granted Hulu’s motion for summary judgement Tuesday in the Hulu privacy class action lawsuit filed in May 2012, after concluding that Hulu did not violate the Video Privacy Protection Act (VPPA) knowingly.

“The VPPA prohibits a ― video tape service provider from ― knowingly disclosing a user’s ― personally identifiable information [PII] to third parties,” Judge Beeler explained.

Under the federal law, such personal information “identifies a person” with the “video materials or services” that were obtained.

Hulu argued in its motion for summary judgement that “it did not ― knowingly send Facebook information that could identify Hulu users, and it did not know that Facebook might read the information that Hulu sent so as to yield ― personally identifiable information under the VPPA.” Hulu also filed a motion to have the class action lawsuit dismissed in August 2014. 

Judge Beeler says that she agrees with Hulu’s assertion that it did not know that Facebook would “combine information that identified Hulu users with separate information specifying which video that user was watching,” which in other words is identifying  “a person as having requested or obtained specific video materials or services,” as described by the federal law.

She contends that the Hulu’s class action lawsuit is different from the type of situation that the VPPA was enacted to prevent, where “the connection between a specific user and the material that he ‘requested or obtained’ is obvious.”

According to the California federal judge, “If I hand someone a slip of paper with John Doe‘s name above a list of recently rented videotapes, the connection between the two will generally be apparent.

“This is all the more so because the information is passed between humans in a natural language. The recipient can immediately read the note and see the connection. There is an immediate disclosure of PII,” she aded.

By comparison, with the Hulu class action lawsuit, “The user‘s identity and that of the video material were transmitted separately (albeit simultaneously).”

“By sending those two items Hulu did not thereby connect them in a manner akin to connecting Judge [Robert] Bork to his video-rental history; that is, Hulu did not disclose information that ―identifie[d] a person as having requested or obtained specific video materials,” the California federal judge explained.

“The connection here would be established, if at all, by an act of the recipient,” she contends. “This means that, even if both elements were sent to Facebook, they did not necessarily disclose a user ― as having requested or obtained specific video materials unless Facebook combined the two pieces of information.

“Without Facebook forging that connection there is no ―disclosure of ―personally identifiable information under the terms of the VPPA,” she concludes.

She explains that the same situation would be the case if the class action lawsuit were about a brick-and-mortar video store.

“Let us say that a video-store clerk gives a local reporter a slip of paper showing only someone‘s name. Weeks later, someone else hands the reporter a list of video titles,” she says. “There is no obvious connection between the two.”

However, “If extrinsic proof shows that the reporter and video provider had agreed to separate the disclosures in place and time, so that the clerk would hand over only the renter‘s name, while the video titles would arrive later by a third-party courier — but that both parties understood how the name and titles were related — that would supply the connection.”

In either way, the connection “must exist.”

As for the arguments in the Hulu, Facebook class action lawsuit, Judge Beeler explains that “The plaintiffs do not establish a genuine issue of material fact showing either that Facebook combined the c_user and watch-page information to yield PII, or (more important) that Hulu knew that Facebook might combine those discrete things to reconstruct PII.

“The plaintiffs indeed identify no proof in this regard,” she says. “They instead argue that they do not have to prove this.”

For these reasons, Judge Beeler grants summary judgement and dismissed the second amended complaint with prejudice, meaning that the plaintiffs may not amend and refile the class action lawsuit.

Attorney Joseph Malley, part of the team representing the plaintiffs, told The Hollywood Reporter that “there will be an appeal.”

The plaintiffs are represented by Joseph H. Malley of the Law Office of Joseph H. Malley PC., David C. Parisi and Suzanne Havens Beckman of Parisi & Havens LLP, Scott A. Kamber, David A. Stampley and Grace E. Tersigni of KamberLaw LLC, and Brian R. Strange and Gretchen Carpenter of Strange & Carpenter.

Hulu is represented by Robert M. Schwartz, Steven M. Dunst and Victor Jih of O’Melveny & Myers LLP.

The Hulu Privacy Class Action Lawsuit is In re: Hulu Privacy Litigation, Case No. 3:11-cv-03764, in the U.S. District Court for the Northern District of California.

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