Antitrust Law Daily Wrap Up, PRIVACY—11th Cir.: Cartoon Network app user not “subscriber” under Video Privacy Protection Act, (Oct 13, 2015)

By Greg Hammond, J.D.

In an issue of first impression concerning the Video Privacy Protection Act (VPPA), the U.S. Court of Appeals in Atlanta has held that “a person who downloads and uses a free mobile application on his smartphone to view freely available content, without more, is not a ‘subscriber’ (and therefore not a ‘consumer’) under the VPPA.” In affirming a lower court’s dismissal of VPPA claims, the appellate court concluded that a user who downloaded The Cartoon Network, Inc.’s free app on his smartphone, without more, was not a “subscriber” under the VPPA (Ellis v. The Cartoon Network, Inc., October 9, 2015, Jordan, A.).

The user claimed that after he downloaded Cartoon Network’s free app on his smartphone to watch video clips, Cartoon Network, without the user’s consent, kept records of the videos he watched and shared the records with a third-party data analytics company called Bango. Although Cartoon Network did not give Bango the user’s name, address, or social security number, Bango could still identify the user from his Android ID and knows which videos he watched. The user sued Cartoon Network under the VPPA, alleging he was a subscriber of Cartoon Network and therefore a consumer under the Act. The district court found that the user was a “subscriber,” and therefore a “consumer,” under the VPPA, but dismissed the complaint because his Android ID and video viewing records were not “personally identifiable information” under the VPPA. The user appealed.

Looking to the ordinary meaning of the term “subscriber,” the appellate court concluded that “subscriptions” involve some or most of the following factors: payment, registration, commitment, delivery, express association, and/or access to restricted content. However, the user in this case did not: (1) make any payment to Cartoon Network to use the app; (2) become a registered user of the app; (3) receive a Cartoon Network ID; (4) establish a profile; (5) sign up for any periodic services or transmissions; or (6) make any commitment or establish any relationship that would allow him access to exclusive or restricted content.

“In our view, downloading an app for free and using it to view content at no cost is not enough to make a user of the app a ‘subscriber’ under the VPPA, as there is no ongoing commitment or relationship between the user and the entity which owns and operates the app,” the court stated. The user was therefore not a “subscriber” of Cartoon Network or its app, and the lower court’s order of dismissal was therefore affirmed.

The case number is 14-15046.

Attorneys: Ryan D. Andrews (Edelson, PC) and Jennifer Auer Jordan (The Jordan Firm, LLC) for Mark Ellis. Alan W. Bakowski (Troutman Sanders, LLP) and Marc J. Zwillinger (ZwillGen, PLLC) for The Cartoon Network, Inc.

Companies: The Cartoon Network, Inc.

Cases: Privacy AlabamaNews FloridaNews GeorgiaNews