• by Wendy Davis  @wendyndavis, November 16, 2023

The Philadelphia Inquirer must face a privacy lawsuit alleging it wrongly transmits data about online subscribers' video viewing to Meta Platforms, a federal judge ruled this week.

The ruling, issued by U.S. District Court Judge John Milton Younge in the Eastern District of Pennsylvania, stemmed from a lawsuit brought last year by Jason Braun and other newspaper subscribers. They alleged in a class-action complaint that the Inquirer disclosed identifying information about them, along with the videos they accessed, to Facebook via the Meta Pixel tracking code.

The complaint included claims that Meta violated the federal Video Privacy Protection Act, which prohibits companies from sharing identifiable information about people's video viewing history, and Pennsylvania's wiretap law, which prohibits the interception of electronic communications without all parties' consent.

The lawsuit is one of dozens of recent cases against web site operators that allegedly embed the Meta Pixel in their sites. Other companies to face similar complaints include Gannett, Epoch Times, WebMD, Paramount and Dotdash Meredith.

The Inquirer urged Younge to dismiss the lawsuit at an early stage, arguing that the allegations, even if proven true, wouldn't show that the company violated either the federal video privacy law or state wiretap statute.

Among other contentions, the Inquirer said Braun and the others only alleged that their Facebook “identifiers” -- a series of numbers tied to users' profiles-- were transmitted to the social media platform.

The newspaper argued that the identifier isn't personally identifiable because it wouldn't “easily enable an ordinary person to identify an individual."

Younge rejected that argument for now, writing that other judges have allowed plaintiffs to proceed with video privacy complaints based on allegations that their Facebook identifiers were transmitted to Meta. But Younge also suggested he might revisit the question after more evidence came out through litigation.

The Inquirer also argued that the wiretapping claim should be dismissed on the theory that the subscribers consented to the alleged disclosures.

“Plaintiffs expressly consented to the Inquirer sharing their personal information under the Inquirer’s Privacy Policy,” the company argued in papers filed with Younge in April. “Plaintiffs also impliedly consented to the sharing their personal information through their use of the internet and by becoming as Facebook users who agreed to have their internet actions tracked via the Facebook cookie that Facebook assigns to them and installs on their web browsing devices.”

Younge also rejected that argument for the present, writing that whether the subscribers consented was a factual question that couldn't be determined at an early stage of the lawsuit.