The US Supreme Court refused to take up a Video Privacy Protect Act (VPPA) case, a move that may benefit companies defending claims under the decades-old federal statute.
In Hughes v. NFL, the plaintiff alleged that his video-watching history on the NFL’s website had been transmitted to Facebook without his knowledge or consent, in violation of the VPPA. An Illinois federal court dismissed the case before it was appealed to the Second Circuit, which also dismissed it.
McCarter & English partner Erin Prest told Privacy Daily that the court “focused on the definition of personally identifiable information and whether an ordinary person could identify video-watching habits.” Erin noted, “The court’s discussion of the code and what information was shared with Facebook provides companies facing VPPA suits with precedent that the information they share is not actually identifiable to an ordinary person.”
The court did agree, however, to hear a separate VPPA case, which could signal that it is “going to focus on the definition of ‘consumer’ under VPPA,” rather than the ‘ordinary person’ standard. The Supreme Court’s denial may also “be interpreted to reflect a view that they don’t feel they need to weigh in on whether the information is actually personally identifiable or whether a video was pre-recorded,” Erin said.
“Overall, the denial in Hughes appears to signal that the Court is focused on the precise definition and area of conflict among the circuits without broadening to other parts of the statute or, even, other parts of the definition of a consumer,” she said.