VPPA Suit Fails to State ‘Plausible Claim,’ Says Nexstar's Motion to Dismiss
Zachary Rohlfs’ Feb. 9 class action alleging Nexstar Media knowingly disclosed to Facebook data containing subscribers’ personal identifiable information (PII) and digital files of videos viewed on its WGNTV.com website (see 2302100028) “should be dismissed in its entirety with prejudice and without leave to replead,” said Nexstar’s motion to dismiss Friday (docket 1:23-cv-01050) in U.S. District Court for Central Illinois in Urbana.
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Rohlfs’ complaint “purports to assert a single claim” under the Video Privacy Protection Act, but he relies on “generic and conclusory allegations with no specific factual allegations supporting his claims,” said Nexstar’s motion. The VPPA doesn’t apply “to the conduct alleged as a matter of law,” it said. Dismissal is warranted because Rohlf “has failed to state a plausible claim under the VPPA, and the pleading deficiencies are not curable,” it said.
None of Rohlfs’ allegations “adds up to a VPPA violation,” said Nexstar’s memorandum of law in support of its motion. His theory is based on the “conclusory allegation” that he’s a subscriber to WGNTV.com, a free online news source associated with the Nexstar-owned Chicago-area TV station WGN9, it said. He thus identifies himself as a consumer “to which the VPPA applies,” it said.
But courts have held that to be a subscriber who qualifies as a consumer under the VPPA, “there must be some commitment or ongoing relationship with respect to viewing or obtaining video content,” said the memorandum. Rohlfs alleges only that he provided his email address to receive free email newsletters, “which neither contained any embedded videos nor provided him with special or exclusive access to any video content on WGNTV.com,” it said.
Rohlfs doesn’t allege that he has an account, username or password for WGNTV.com or its derivative mobile app, said the memorandum. He wasn’t required to sign up for the website’s email newsletters to access any content on WGNTV.com,” it said. Rohlfs, “just like anyone else,” was free to “read about his favorite Chicago teams, check the weather, or view live or prerecorded videos on WGNTV.com regardless of whether he received email newsletters,” it said. That fails to qualify him as a subscriber, and thus he’s not a consumer under the VPPA, it said.
The VPPA applies only to the disclosure of PII to third parties, yet Rohlfs “has failed to allege that any information that was allegedly disclosed meets the VPPA’s definition of PII,” said the memorandum. To qualify as PII under the statute, the information disclosed by a defendant “must include both the specific video content allegedly viewed and the plaintiff’s identity,” plus a “clear connection allowing the recipient to discern what specific videos the plaintiff watched,” it said.
Under the VPPA, it’s “not enough that Facebook may be able to combine different data points” to connect plaintiffs to video materials they may have viewed on WGNTV.com, said the memorandum. To support a VPPA claim, a plaintiff “must allege (and ultimately prove) that the defendant knowingly disclosed the PII to a third party” under the statute’s mens rea (guilty mind) "element," it said. Rohls doesn’t allege that Nexstar disclosed his identity to Facebook, it said. He even concedes that his own browser disclosed his Facebook ID to Facebook “using a Facebook cookie, not a Nexstar cookie,” it said.
Rohlfs also has failed to allege that he viewed prerecorded video content on WGNTV.com, “as required under the VPPA,” said the memorandum. The VPPA doesn’t apply to live content, “which is available on WGNTV.com along with prerecorded videos,” it said. Since Rohlfs doesn’t specify what type of video content he viewed, “he has failed to plead an essential element of his claim,” it said.