• by Ray Schultz , December 22, 2022

Gannett is facing a legal problem that could affect any publisher or company that uses data.  

A federal judge has ruled that a suit alleging violations of the Video Privacy Protection Act by Gannett can proceed.

That case was filed in June of this year by a consumer named Serge Belozerov. The complaint charged that Gannett had breached the VPPA and shared personally identifiable information on Belozerov with Facebook. 

U.S. District Judge Nathaniel M. Gorton wrote that "at this early juncture plaintiff plausibly pleads a violation of the VPPA's prohibition on disclosure of PII," and dismissed Gannett's motion to drop the case. 

The complaint states that Gannett collects and shares the personal information of visitors to its website and mobile phone application ("app") with third parties through the use of 'cookies,' software development kits and pixels," Garden wrote in his summary of the case. 

A tracking pixel "would enable Gannett to track what video media its users watched on the USA Today website or app and report it to Facebook," the judge continued. "Gannett then installed the tracking pixel on its website and app to provide targeted advertising to its users."

Gannett sought to have the suit tossed on three grounds:

• USA Today is a news provider, not a video tape services provider engaged in the video rental business.
• It did not release PII. 
• Even if it did release PII, it did not do so knowingly.

Garten rejected all three arguments, citing a First Circuit Court decision in a nearly identical case filed against Gannett in 2014 by a Massachusetts resident named Alexander Yershov.

(The judge notes that the VPPA was enacted after Judge Robert H. Bork's video rental history was published by a newspaper during his Supreme Court confirmation hearings). 

As for PI, Garten wrote, "A Facebook ID meets the broad definition of PII in this circuit. In Yershov, The First circuit analyzed the language of the statute to conclude that PII is not limited to information that explicitly names a person [and] many types of information other than a name can easily identify a person."

Both parties in the current case both agree that the issues are the same as those in the Yershov case.

As reported by MediaPost, Yershov ultimately dropped that case because he lacked the evidence to show that Gannett's USA Today app violated the federal Video Privacy Protection Act by disclosing his video viewing history, Android ID and geolocation data to Adobe."

The First Circuit sided against Gannett on that point in 2016. The appellate judges wrote that device identifiers combined with geolocation data could be personally identifiable.

Here is the threat to publishers: In the earlier case, the Interactive Advertising Bureau, The New York Times, Huffington Post and other entities argued in a friend-of-the-court brief the appellate court's decision "risks exposing companies to broad class action liability for routine digital transactions that are essential to online content distribution."