• by Wendy Davis  @wendyndavis, September 16, 2024

Siding with NBC Universal, a federal judge has thrown out a lawsuit by Missouri resident Sherhonda Golden, who claimed the company violated a video-privacy law by embedding Meta Platforms' analytics tool, the Meta Pixel, on today.com.

The ruling, issued last week by U.S. District Court Judge Paul Engelmayer in the Southern District of New York, came in a dispute dating to November 2022, when Golden alleged that NBC wrongly shared her video-viewing data with Facebook, via the Meta Pixel.

Her complaint included a claim that NBC violated the Video Privacy Protection Act, a 1988 law that prohibits video-rental companies from disclosing personally identifiable information about consumers' viewing history without their permission. The statute defines “consumer” as a “renter, purchaser, or subscriber” of services from a video tape service provider.

Although the law predates the modern internet, judges have said the statute covers streaming video services. But other questions about the law's applicability to online video haven't been definitively resolved by the courts.

NBC argued the matter should be dismissed for several reasons. Among others, the company said Golden wasn't a “subscriber” to today.com -- meaning that her claims weren't covered by the federal privacy law.

Golden countered that she had subscribed to a today.com email newsletter, which included links to online videos, and should therefore be considered a subscriber to the website.

Engelmayer accepted NBC's argument, writing that there were no allegations that the email newsletter gave Golden “access to exclusive video content otherwise unavailable to a member of the general public who is not a newsletter subscriber.”

“On the basis of the [complaint], anyone could access the same videos by accessing Today.com's website, regardless whether that person subscribed to the daily digital newsletters,” he wrote.

Not all judges have agreed with that reasoning.

In 2022, a federal judge in Atlanta considered a lawsuit similar to Golden's, but reached a different decision.

In that matter, U.S. District Court Judge Thomas Thrash, Jr. in Georgia allowed Debra Lebakken to proceed with claims that online health publisher WebMD disclosed visitors' video-viewing information to Meta Platforms. Lebakken alleged that she “subscribed” to WebMD by signing up for its free e-newsletter.

The 2nd Circuit Court of Appeals in New York is currently considering the same question in a 2022 lawsuit brought by California resident Michael Salazar against NBA.com. Salazar alleges that he was a “subscriber” to NBA.com, and therefore should have been able to proceed with a class-action complaint accusing the National Basketball Association of violating the federal video privacy law by sharing his video-viewing data with Facebook via the Meta Pixel.

The appellate court heard arguments in that case in April.