‘Material Differences’ Abound in 2 VPPA Cases, Says PBS Response

There’s little relevance to plaintiff Jazmine Harris’ Video Privacy Protection Act claims against PBS in the recent decision in Goldstein v. Fandango Media denying a motion to dismiss a complaint asserting VPPA violations, said PBS Thursday (docket 1:22-cv-02456) in U.S. District Court for Northern Georgia in Atlanta. PBS seeks leave to respond to Harris’ notice of supplemental authority in which she said Goldstein involved “similar claims and factual allegations” to those she’s asserting against PBS (see 2303140019).

“Not so,” said PBS’ proposed response. “There are material differences between the factual allegations in Goldstein and Harris’ complaint against PBS “that warrant a different outcome in this case,” it said. In Goldstein, the plaintiffs alleged they bought movie tickets through the Fandango website, it said. Harris, by comparison, doesn’t allege “she made any purchases from PBS, paid any money through the PBS website, or that she has any other financial relationship with PBS,” it said. This material difference renders Goldstein “distinguishable and inapposite” to Harris’ allegations, it said.

The personally identifiable information (PII) allegedly disclosed in Goldstein “also differs from that which is alleged in this action,” said PBS. Unlike in Goldstein, Harris doesn’t allege PBS discloses PII to any third parties through application programming interfaces, it said. Nor does Harris allege PBS “specifically configured” the Mega Pixel tracking tool to disclose PII, it said.

PBS also said Goldstein didn’t consider that any disclosure of Harris’ Facebook ID “was the result of her unilateral and voluntary decision to log into Facebook prior to accessing PBS’s website, rather than an act of disclosure by PBS,” it said. The Goldstein court didn’t have the opportunity to rule on this argument because Fandango never raised it, it said.

The decision similarly doesn’t address PBS’ argument that Harris fails to plausibly allege the broadcaster “knowingly” disclosed her Facebook ID, said PBS. Harris doesn’t allege PBS even knew Harris had a Facebook account, “much less had navigated to the PBS website while logged into her Facebook account,” it said. Goldstein doesn't preclude granting PBS’ motion to dismiss, it said.