• by Wendy Davis  @wendyndavis, November 29, 2024

NBC Universal could once again be facing a class-action privacy lawsuit for allegedly sharing web users' data with Meta Platforms, a federal judge indicated Wednesday.

U.S. District Court Judge Paul Englemayer in New York previously dismissed the privacy case. But in an opinion issued Wednesday, Englemayer said he will reverse course, provided the matter comes before him again.

The legal battle dates to 2022, when Missouri resident Sherhonda Golden claimed in a class-action complaint that NBC violated the federal Video Privacy Protection Act (VPPA) by sharing her video-viewing data with Facebook, via the Meta Pixel analytics tool.

Congress passed that law in 1988, after a Maryland store disclosed the video rental history of Supreme Court nominee Robert Bork to a newspaper. The statute prohibits video rental companies from disclosing personally identifiable information about the viewing history of video renters, purchasers and subscribers without their permission.

NBC urged Englemayer to dismiss the case, arguing that Golden wasn't a “subscriber” to Today.com.

But Golden countered that she had subscribed to a Today.com email newsletter, which included links to online videos.

In late September, Engelmayer accepted NBC's argument and dismissed the complaint. Golden appealed that decision to the 2nd Circuit Court of Appeals, but hasn't yet made any substantive arguments to that court.

Soon after Engelmayer dismissed Golden's complaint, the 2nd Circuit ruled in a separate video privacy lawsuit that the term “subscriber” should be interpreted broadly.

“The VPPA is no dinosaur statute,” Circuit Judge Beth Robinson wrote in that case, in an opinion joined by Judges Reena Raggi and Eunice Lee.

“Congress deployed broad language in defining the term 'consumer,' showing it did not intend for the VPPA to gather dust next to our VHS tapes,” the judges added. “Our modern means of consuming content may be different, but the VPPA’s privacy protections remain as robust today as they were in 1988.”

That appellate ruling means that Golden should have been considered a subscriber to NBC, and that her class-action complaint warranted further proceedings, Englemayer essentially said Wednesday.

Golden “alleged that she used her Today.com digital subscription to view videos through its website and mobile application while concurrently logged into her Facebook account, which caused her personal viewing information to be transmitted to NBCU's third-party business partners,” Englemayer wrote.

The complaint “has thus plausibly pled that she is a 'subscriber of goods and services,'" he added.

He said that if the 2nd Circuit sends the case back to him for reconsideration, he will withdraw his earlier decision that granted NBC's dismissal motion. The opinion leaves open the opportunity for NBC to argue that the case should be dismissed for other reasons.