On October 9, the Eleventh Circuit affirmed in Ellis v. Cartoon Network, Inc. that a person who downloads and uses a free mobile application to view freely available content is not, without more, a “subscriber” under the Video Privacy Protection Act (“VPPA”).
Cartoon Network offers a free mobile app that people can download to watch clips or episodes of Cartoon Network shows without charge. Plaintiff Ellis alleged that Cartoon Network disclosed the free videos he had viewed to a third party, and that such disclosures violated the VPPA.
The VPPA generally provides a cause of action against a “video service provider” that knowingly discloses a subscriber’s personally identifiable information (“PII”) and viewing data to third parties. Defining “subscribers” has been difficult for district courts. Some have ruled that mere users of free services cannot be “subscribers.” Others have ruled that visiting a website and viewing videos can be sufficient for the viewer to be considered a “subscriber.”
The district court in Cartoon Network had ruled that Ellis was a “subscriber” of Cartoon Network’s services because he downloaded the Cartoon Network app to his smartphone and used it to watch videos. But the court ruled that Ellis’ device ID was not PII, because a device ID alone did not identify a particular individual. The court therefore dismissed Ellis’ complaint. Ellis appealed.
The Eleventh Circuit affirmed the dismissal on alternative grounds. It held that even though payment is not a necessary element of subscription, the ordinary meaning of “subscription” “involves some type of commitment, relationship, or association (financial or otherwise) between” a provider and user. Using a free service to view freely available content, without more, does not give rise to such an ongoing engagement with the content’s provider. Ruling on those bases that Ellis was not a “subscriber” and thus could not bring a VPPA claim, the court declined to address the meaning of PII under the VPPA.
The Eleventh Circuit’s decision provides clarity to VPPA jurisprudence, and comfort to providers of free video services that users who do not otherwise establish any ongoing relationship or exchange information with the provider may not bring a suit under the VPPA. (Note, the Eleventh Circuit’s decision is only binding on federal courts sitting in Alabama, Florida, and Georgia.) However, by not providing a clear appellate ruling on what constitutes PII in the VPPA, the court sidestepped an ongoing division among district courts as to what types of information count as PII. Resolution of that issue will have to wait.