Thomson Reuters Files Two Motions to Dismiss in Bid to End Video Privacy Class Action

Two motions submitted late last week by global news outlet Reuters News & Media Inc.  requested the dismissal of a Video Privacy Protection Act (VPPA) suit over its alleged tracking of the plaintiff’s online video watching history on Reuters’ website. 

The motion to dismiss claims that in addition to pleading deficiencies, the VPPA is unconstitutional. The preemptive motion to strike says the class action allegations must fall as all putative class members agreed to waive their collective action claims through their use of or having signed up for a Reuters newsletter.

The case, like others filed in the last year, bases its claims off “a statute that famously stems from the disclosure of information about the video rental history of the family of Judge Robert H. Bork.” 

Decades after enactment, and in the current digital, web-based age where few video rental stores exist, claimants, like the Reuters subscriber now assert that websites offering video content illegally share their users’ viewing and personally identifiable information with Facebook through a tracking pixel, which Reuters calls “an industry-standard tracking tool.”

In the Southern District of New York suit, Reuters points out that the VPPA allegations acknowledge that the media giant plainly disclosed its use of pixels to users and the complaint expressly pleaded that it was the plaintiff’s own web browser—not Reuters—that actually transmitted the data to Facebook. 

The dismissal motion claims that as such, the complaint falters every step of the way. For example, the motion says Reuters is not  a “video-tape service provider” under the law’s plain language. 

“Indeed, the U.S. government has explained in another action that the VPPA ‘does not apply to news organizations, advocacy groups, or other entities whose mission is to publicize information of public import,’” the brief says, quoting from an intervention motion filed by the United States in defense of the VPPA’s constitutionality in a suit filed by users of the Patreon content creation platform.

Further, Reuters’ motion contends that as applied, the VPPA unconstitutionally restricts commercial speech in violation of the First Amendment. In the Patreon case, the government responded to a similar challenge, claiming the VPPA withstands the intermediate scrutiny analysis applicable to regulations of commercial speech, while acknowledging that in some cases, it could prohibit non-commercial disclosures.

Reuters’ motion to strike class allegations, made before the affirmative filing of a motion for class certification, asserts that the terms agreed to by all putative class members foreclose their right to bring a collective action. Reuters concludes that as a matter of law, the plaintiff cannot act as a class representative as she fails to be an adequate one and because she cannot satisfy the Federal Rules’ numerosity requirement.

The plaintiff is represented by Bailey & Glasser LLP and Peiffer Wolf Carr  Kane Conway & Wise LLP. Reuters is represented by Baker & Hostetler LLP.