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Carter v. Scripps Networks LLC

Newsletter Subscribers Are Not 'Subscribers' Under Video Privacy Protection Act

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OPINION AND ORDER Plaintiffs in this putative class action assert that defendant Scripps Networks, LLC (“HGTV”) collects and discloses to Facebook their identities and video-streaming activities on hgtv.com. The Complaint asserts that HGTV unlawfully disclosed plaintiffs’ personally identifiable information in violation of the Video Privacy Protection Act of 1988, 18 U.S.C. §2710(b)(1) (the “VPPA”). HGTV moves to dismiss the Complaint pursuant to Rules 12(b)(1) and Rules 12(b)(6), Fed. R. Civ. P. For the reasons that will be explained, the Court concludes that the Complaint alleges a concrete harm, and that plaintiffs have Article III standing. HGTV’s Rule 12(b)(1) motion will be denied. However, the Complaint does not plausibly allege that plaintiffs’ newsletter subscriptions made them “subscribers” under the VPPA, and therefore fails to allege that plaintiffs are in a category of persons eligible to bring a claim under the VPPA. The motion to dismiss will therefore be granted. BACKGROUND. In reviewing this Rule 12(b)(6) motion, the Court assumes all factual allegations in the Complaint to be true and draws all reasonable inferences in favor of plaintiffs as non-movants. See, e.g., Peretti v. Authentic Brands Grp. LLC, 33 F.4th 131, 137 (2d Cir. 2022). HGTV owns and operates hgtv.com, a website that hosts hundreds of videos featuring home and lifestyle content. (Compl’t

2, 15.) The website is popular, and averages approximately 9.9 million visitors each month. (Id. 2.) In addition to viewing the site’s videos, visitors to hgtv.com have an option to subscribe to newsletters tailored to their interests. (Id. 42.) To receive an hgtv.com newsletter, the subscriber enters an email address and chooses from themes like “HGTV Weekend Projects” and “HGTV Inspiration.” (Id.

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