On July 31, 2015, in Mollett v. Netflix, Inc., No. 12-17045, the Court of Appeals for the Ninth Circuit affirmed the order of the United States District Court for the Northern District of California dismissing claims brought under the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, and California Civil Code § 1799.3 by two plaintiffs on behalf of themselves and other similarly-situated Netflix subscribers. Plaintiffs allege that Netflix violated the statutes by permitting certain disclosures about their viewing history to third-parties, namely, subscribers’ family, friends and guests. The claims were directed at Netflix’s display of a subscriber’s video queue and “recently watched” video titles on a subscriber’s television when Netflix is activated. Netflix brought a motion to dismiss for failure to state a claim on the grounds that, inter alia, disclosures of personal information are made to subscribers themselves and therefore permissible. The Ninth Circuit stated that:
“The interpretation of this section of the VPPA is an issue of first impression for this Circuit. The VPPA was enacted in 1988 in response to the Washington City Paper’s publication of then-Supreme Court nominee Robert Bork’s video rental history. [citation omitted] The paper had obtained (without Judge Bork’s knowledge or consent) a list of the 146 films that the Bork family had rented from a Washington, D.C.-area video store. Id. Members of the Judiciary Committee “denounced the disclosure” and Congress acted swiftly to enact the VPPA . . . ‘[t]o preserve personal privacy with respect to the rental, purchase or delivery of video tapes or similar audio visual materials.’ Id. at *7.”
The Ninth Circuit dismissed plaintiffs’ claims. “The VPPA prohibits a ‘video tape service provider’ from knowingly disclosing ‘personally identifiable information’ about one of its consumers ‘to any person,’ and provides for liquidated damages in the amount of $2,500 for violation of its provisions.’ . . . The Act provides several exceptions to the disclosure prohibition, [including] allowing disclosure of a consumer’s video rental history to the consumer himself. . .” Id. at *8. The Ninth Circuit held that the disclosure alleged by the plaintiffs is a disclosure “to the consumer” that is permitted by the Act. Id. at *9:
“The fact that a subscriber may permit third parties to access her account, thereby allowing third parties to view Netflix’s disclosures, does not alter the legal status of those disclosures. No matter the particular circumstances at a subscriber’s residence, Netflix’s actions remain the same; it transmits information automatically to the device that a subscriber connected to her Netflix account. The lawfulness of this disclosure cannot depend on circumstances outside of Netflix’s control.”
Id. at *12. The Ninth Circuit applied the same analysis to dismiss the claims under California’s video privacy statute, Civil Code § 1799.3.
The Ninth Circuit’s opinion may be found at the following link: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/15/13-55666.pdf