On February 15, 2017, the United States District Court for the Eastern District of Michigan denied Time Inc.’s (“Time”) motion to dismiss a lawsuit predicated on Michigan’s Video Rental Privacy Act (the “Act”).  According to the Act, “a person . . . engaged in the business of selling . . . written materials . . . shall not knowingly disclose to any person, other than the customer, a record or information that personally identifies the customer as having purchased . . . those materials from the person engaged in the business.”  The plaintiff—Carolyn Perlin—was a subscriber to a magazine that Time published, and alleged that Time violated the Act when it disclosed to data mining companies that she had purchased a subscription to one of the company’s magazines.

In its motion to dismiss, Time argued that the plaintiff had failed to prove one of the Article III standing requirements: injury in fact.  According to the company, because of the U.S. Supreme Court’s decision in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), the plaintiff did not satisfy the injury in fact requirement because she had not alleged any injuries aside from the mere violation of the statute and entitlement to statutory damages.  The court, however, disagreed.

First, the court recognized that the Act had created a new right to privacy and that a violation of that right counts as a real and concrete harm, even if the harm is not tangible.  Second, the court determined that Time’s alleged disclosure of the plaintiff’s personal information was not a “bare procedural violation” insufficient to establish an injury in fact.  Instead, according to the court, the alleged disclosure, if proved, would be a violation of the Act’s “substantive core.”  On those grounds, along with an acknowledgement that the right the Act guarantees is similar to other privacy rights that courts have been recognizing over the last century, the court concluded that a violation of the Act counts as an injury in fact for the purposes of Article III standing.