Antitrust Law Daily Wrap Up, PRIVACY—11th Cir.: User of free CNN smartphone app was not a ‘consumer’ under Video Privacy Protection Act, (Apr 28, 2017)

By Edward L. Puzzo, J.D.

An individual who downloaded a free CNN app to his smartphone, which allegedly gathered personally identifiable information without his consent in violation of the Video Privacy Protection Act (VPPA), had alleged a sufficiently concrete injury to provide standing, U.S. Court of Appeals in Atlanta has ruled. However, the individual could not maintain the action because he did not qualify as a "consumer" under the VPPA statute (Perry v. Cable News Network, Inc., April 27, 2017, Restani, J.).

Ryan Perry brought a putative class action against Cable News Network (CNN). Perry alleged that the CNN app he downloaded to his iPhone from the Apple Store tracked his viewing activity and forwarded it to a data analytics company. He alleged that this activity was the use of his personally identifiable information without his consent, in violation of the Video Privacy Protection Act. The federal district court dismissed the complaint for failure to state a claim, finding that Perry was not a "consumer" under the VPPA and the information at issue was not "personally identifiable information." The court further denied plaintiff’s motion to amend his complaint. Plaintiff appealed.

Standing. Based on the 2016 U.S. Supreme Court ruling in Spokeo, Inc. v. Robins, 136 S. Ct. 1540, CNN questioned whether the intangible harm of a statutory violation alone provided a sufficiently concrete injury to provide standing to plaintiff. The appellate court answered that the VPPA violation in this case, an alleged wrongful disclosure of personal information, was sufficiently concrete on its own to provide Perry standing.

Video Privacy Protection Act. The VPPA prohibits the knowing disclosure by a provider of a consumer’s personally identifiable information, the court explained. The term "consumer" includes a purchaser, renter, or subscriber. Here, Perry downloaded the CNN app, but did not pay for it or rent it. To be a "subscriber," the court continued, required some sort of ongoing commitment or relationship between the user and entity owning the app. Downloading an app for free and using it to view content at no cost was not sufficient to make the user a "subscriber" under the VPPA, the court stated. Perry did not sign up for or register an account with CNN, provide personal information to them, provide them with an email address or credit card number, nor sign up for periodic services or transmissions.

Perry sought to amend his complaint to allege that he was a subscriber to CNN in order to address these shortcomings. But the court noted that the proposed amendment would only show a commitment to his cable television provider, rather than to CNN. The court found the use of the CNN app to view content was insufficient to create the requisite "ongoing commitment or relationship" with CNN to make him a subscriber, necessary to state a claim under the VPPA. Thus the appellate court affirmed the district court’s ruling that Perry was not a "consumer," making it unnecessary to further address whether or not the CNN app provided "personally identifiable information" without consent.

The case is No. 16-13031.

Attorneys: Ryan D. Andrews (Edelson, PC) for Ryan Perry. Marc J. Zwillinger (ZwillGen, PLLC) and Alan W. Bakowski (Troutman Sanders, LLP) for Cable News Network, Inc. and CNN Interactive Group, Inc.

Companies: Cable News Network, Inc.; CNN Interactive Group, Inc.

Cases: Privacy AlabamaNews FloridaNews GeorgiaNews