In Mollett, et al. v. Netflix, Inc., No. 12-17045 (9th Cir. July 31, 2015), the Court of Appeals for the Ninth Circuit affirmed the dismissal of a putative class action filed against Netflix, Inc. for alleged violations of the Video Privacy Protection Act, 18 U.S.C. § 2710 (“VPPA”). Netflix offers an online streaming service through which its customers may log on to a password protected site, view movies, and also develop an online queue of movies. Based upon the customer’s viewing habits, Netflix offers recommendations for similar titles, where suggested movies are placed in a list titled “Because You Like [Name of Recently-Watched Film].”
The VPPA prohibits video tape service providers from knowingly disclosing personally identifiable information and viewing history regarding its customers. The named plaintiffs argued that Netflix violated the VPPA by disclosing its customers’ viewing history via the suggested titles—which customers could not delete or hide—to customers’ family, friend, and guests who used or viewed the customers’ online account. The named plaintiffs sought to represent a class of similarly situated individuals.
The Ninth Circuit affirmed the dismissal of the action and concluded that Netflix’s disclosure was properly limited to the password-protected account of the subscriber, and that Netflix did not knowingly provide viewing information to any third-parties.
[W]e now hold, the disclosure alleged by Plaintiffs is a disclosure “to the consumer” that is permitted by the Act. The complaint alleges that upon setting up a Netflix account, personally identifiable information, by default, is only disclosed to a Netflix subscriber through her password protected account. Under those circumstances, a subscriber’s queue or recommendation lists are only viewable by the subscriber. Netflix subscribers can then elect to display on their televisions what would otherwise be password-protected information by registering Netflix-ready devices in their accounts. Thereafter, Netflix automatically displays on a television what it displays on a subscriber’s computer: streamed instant videos, the subscriber’s queue, and video recommendations. This is plainly a disclosure “to the consumer” as contemplated by the VPPA. When Netflix displays a subscriber’s queue, viewing history, or recommendation lists in her online account, that is a disclosure directly to the consumer. The nature of that disclosure does not change when subscribers choose to display the same content on their television screens. The subscriber’s choice to do so does not trigger some new statutory duty on the part of Netflix.
Accordingly, the Ninth Circuit affirmed dismissal of the complaint. A full copy of the Ninth Circuit’s decision is available here.
