Ninth Circuit Affirms Netflix VPPA Viewing History Ruling | Practical Law

Ninth Circuit Affirms Netflix VPPA Viewing History Ruling | Practical Law

In Mollett v. Netflix, Inc., the US Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the plaintiffs' class action under the Video Privacy Protection Act (VPPA), which alleged that Netflix wrongfully disclosed subscribers' viewing histories and personally identifiable information to third parties.

Ninth Circuit Affirms Netflix VPPA Viewing History Ruling

Practical Law Legal Update 5-617-8669 (Approx. 3 pages)

Ninth Circuit Affirms Netflix VPPA Viewing History Ruling

by Practical Law Intellectual Property & Technology
Published on 04 Aug 2015 • USA (National/Federal)
In Mollett v. Netflix, Inc., the US Court of Appeals for the Ninth Circuit affirmed the district court's dismissal of the plaintiffs' class action under the Video Privacy Protection Act (VPPA), which alleged that Netflix wrongfully disclosed subscribers' viewing histories and personally identifiable information to third parties.
On July 31, 2015, the US Court of Appeals for the Ninth Circuit issued an opinion in Mollett v. Netflix, Inc. affirming the US District Court for the Northern District of California's dismissal for failure to state a claim (No. 12-17045, (9th Cir. July 31, 2015)).
Meghan Mollett, on behalf of other similarly situated Netflix subscribers, brought a class action against Netflix, Inc. alleging that it violated both the Video Privacy Protection Act (VPPA) (18 U.S.C. § 2710) and California Civil Code § 1799.3 by disclosing subscribers' viewing histories and other personally identifiable information to third parties like subscribers' friends, family and guests. As the basis for their claims, plaintiffs alleged that when a subscriber is signed into the Netflix service, Netflix displays the subscriber's "recently watched" list, the subscriber's queue of videos to be watched and recommendations for additional videos. Because Netflix does not provide subscribers with any way to hide or remove these displays, plaintiffs alleged that any third party can view these lists, resulting in an impermissible disclosure.
In its motion to dismiss for failure to state a claim, Netflix argued:
  • Its disclosures of personal information are permissible because they are made to subscribers.
  • Any disclosures made to third parties are not made knowingly, as required by the VPPA.
The district court agreed with Netflix and dismissed the suit. Plaintiffs appealed.
On appeal, as a matter of first impression, the Ninth Circuit held that Netflix's alleged practices did not violate the VPPA because:
  • The VPPA allows disclosure of a consumer's rental history to the consumer himself.
  • The disclosures are permitted disclosures to the consumer.
  • The fact that plaintiffs may allow third parties to be present when they access their Netflix accounts and thereby see their recently watched lists and other viewing information does not change the character of the disclosures.
  • Netflix is not required under the VPPA to transmit the information in a secure manner or undertake steps to prevent incidental disclosures to third parties.
The Ninth Circuit dismissed the state law claims for the same reasons.