On April 24, 2023, a judge in the Southern District of New York dismissed a putative class action alleging that Scripps Network LLP (“HGTV”) disclosed plaintiffs’ identities and streaming activities on hgtv.com in violation of the Video Privacy Protection Act (“VPPA”). See Carter v. Scripps Networks, LLC, No. 22-CV-2031 (PKC), 2023 WL 3061858, at *1 (S.D.N.Y. Apr. 24, 2023).
This dismissal was based on the court’s finding that plaintiffs were not “subscribers” within the meaning of the VPPA. HGTV’s website, hgtv.com, hosts hundreds of videos featuring home and lifestyle content. Separately, visitors may sign up for the HGTV newsletter by providing their email addresses and choosing topics that interest them. The named plaintiffs signed up for the HGTV newsletter. Plaintiffs alleged that HGTV disclosed Plaintiffs’ video viewing activity on hgtv.com in order to reach HGTV’s desired audience via targeted advertising.
The VPPA prohibits video tape service providers from disclosing personally identifiable information—including video-watching habits—of a “consumer.” A “consumer” is defined as “any renter, purchaser, or subscriber of goods or services from a video tape service provider….” 18 U.S.C. § 2710(a)(1).
Plaintiffs alleged that they were “subscribers” under the VPPA because they subscribed to the HGTV newsletter. The court disagreed, noting that while the plaintiffs were subscribers to the HGTV newsletter, they were not subscribers to HGTV video services. It noted that subscription to the newsletters was not a condition to accessing the site’s videos and that plaintiffs were “free to watch or not watch hgtv.com videos without any type of obligation, no different than any of the other 9.9 million monthly visitors to the site.” Because plaintiffs were not “subscribers” to video content, the Court dismissed the VPPA claim.
This ruling may be useful to companies who wish to argue that merely signing up to receive promotional materials (such as a newsletter) unrelated to video access is not in itself sufficient to confer subscriber status under the VPPA.