Atlanta Court Denies PBS Motion to Dismiss VPPA Class Action

U.S. District Judge Michael Brown for Northern Georgia in Atlanta denied the PBS motion to dismiss plaintiff Jazmine Harris’ class action for failure to state a Video Privacy Protection Act claim, said his signed order Monday (docket 1:22-cv-02456). Harris alleges PBS disclosed her PBS.org personal viewing information to Facebook without her consent, in violation of the VPPA. Her proposed class includes all PBS.org subscribers who had their personal viewing information disclosed to Facebook.

PBS argues the VPPA requires a plaintiff “to subscribe specifically to an entity’s video services,” said the order. Harris argues the VPPA requires a plaintiff to have a subscriber relationship with an entity, not its video services, it said. Brown agrees with Harris that she “adequately alleged” a subscription to PBS video services, it said. If discovery reveals Harris’ PBS account was “wholly unrelated” to its video content, the court will revisit the issue on summary judgment, it said.

The court disagrees with the PBS argument that Harris doesn’t allege PBS itself disclosed her Facebook ID and video viewing history at PBS.org, said Brown’s order. Harris alleges PBS’ “purposeful use” of the Facebook tracking pixel causes PBS to send her personally identifiable information back to Facebook, it said. PBS challenges this assertion and argues Harris herself causes this to happen by remaining logged into Facebook when she visits PBS.org, it said.

The court is “unpersuaded” by PBS’ challenge, said Brown’s order. At the “motion to dismiss stage,” the court must accept Harris’ allegations as true, it said. Harris “clearly alleges” PBS, through the Facebook pixel tracking tool, sent her Facebook ID and the URLs of the videos she watched to Facebook, it said. PBS’ “factual arguments are not a proper basis for a motion to dismiss,” it said. If discovery reveals PBS “played no role” in the transmission of Harris’ information to Facebook, the court “will consider that at summary judgment,” it said.

The PBS argument also “reveals a deeper flaw,” said Brown’s order. It’s not PBS’ transmission of Harris’ Facebook ID to Facebook “that establishes liability under the VPPA,” it said. What “matters” is the “bundling” of the Facebook ID with the URLs of the videos Harris watched, it said.

That bundling, according to Harris, occurs at PBS.org via the Facebook pixel, and PBS “installed the pixel on its website for that very purpose,” said Brown’s order. That the pixel also requires Harris to be logged into Facebook doesn’t “take away” from PBS’ “role in the transmission,” it said. The court finds Harris has “sufficiently pleaded” PBS “disclosed her personally identifiable information” to Facebook, it said.

Because the VPPA prohibits only a “knowing” disclosure of a user’s video-viewing information, PBS argues Harris hasn’t “pleaded the required knowledge” because she didn’t allege PBS knew Harris had a Facebook account, said Brown’s order. But the court finds Harris “has adequately alleged knowledge,” it said. Harris also alleges PBS intentionally installed the Facebook pixel at the Pbs.org website “to benefit from the transmission of users’ personally identifiable information,” it said. If PBS “installed the Facebook pixel knowing it transmits that information, the knowledge element of the VPPA is satisfied,” it said.