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Media Alerts - Mollett v. Netflix, Inc. - Ninth Circuit
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October 2, 2015
  Mollett v. Netflix, Inc. - Ninth Circuit
Headline: Netflix does not violate the Video Privacy Protection Act when it exposes its customers to their own 'viewing history' on a mandatory basis.

Area of Law: Video Privacy Protect Act, Cal. Civ. Code § 1799.3

Issue Presented:
Whether Netflix violates the Video Privacy Protection Act and Cal. Civ. Code § 1799.3 by permitting certain disclosures about subscribers' viewing history to third parties - specifically subscribers' family, friends, and guests.

Brief Summary:

Plaintiff brought this federal class action lawsuit against Netflix claiming that the online movie service provider violates the Video Privacy Protection Act (VPPA) and Cal. Civ. Code section 1799.3 by disclosing "personally identifiable information" to third parties by automatically displaying on a subscriber's account home page a list of "recently watched" video titles, the subscriber's queue, and lists of video titles recommended by Netflix which are visible to family members, friends, or guests of Netflix subscribers who use a subscriber's account to stream videos, or are in the presence of a subscriber when she is accessing her account through a Netflix-ready device. Netflix subscribers often share their accounts with family and friends because Netflix allows multiple devises to link up with one Netflix account. Anyone with access to that account is exposed to the 'viewing history' on the account's home page. Put another way, the shows and movies that the subscriber had previously watched automatically show up upon signing in to the account. Plaintiff claimed Netflix violates the VPPA and 1799.3 by "knowingly" and "willfully" giving out personally identifiable information" to third parties. The district court and Ninth Circuit disagreed, stating Netflix is not providing the information to the third parties but, rather, to the individual subscriber himself who gave his friends and family access to his own Netflix account.

A Netflix subscriber is not afforded VPPA privacy protections when they let other people use their account.

Extended Summary:

Netflix provides individual customers with a personal list of recommended videos based on the past movies the individual streamed from the site. Netflix software uses the individual subscriber's past movie queue to suggest similar movies or television shows that the customer may be interested in. The Netflix display will automatically recommend a movie and say something along the lines of "we recommend Movie X because you liked Movie Y." Each subscriber has a list of 'recently watched' movies that cannot be deleted, and are open and visible to all family members and friends who use that particular subscription. (Netflix allows multiple devises access to one account so many people share their Netflix service with family and friends).

Plaintiffs claim Netflix is violating the VPPA and California Civil Code section 1799.3 by controlling the 'recently watched' movies and exposing all users (of that particular subscription) to the individual subscriber's recently watched content. Netflix moved to dismiss the case for failure to state a claim based on two theories: (1) the disclosures of personal information are made to subscribers themselves causing no injury, and (2) any disclosures made to a third party are not done knowingly as required by the VPPA, or in willful violation of the law as required by California Civil Code section 1799.3. The district court granted Netflix's 12(b)(6) motion and the Ninth Circuit panel affirmed.

The Video Privacy Protection Act ("VPPA") prohibits movie service providers such as Netflix from "knowingly disclosing personally identifiable information" about one of its consumers to third parties unless the provider received prior written consent. Under the VPPA, Netflix can, however, knowingly provide personal information to that individual consumer himself. The panel held that "the disclosure alleged by Plaintiffs is a disclosure 'to the consumer' that is permitted by the Act": "When Netflix displays a subscriber's queue, viewing history, or recommendation lists in her online account, that is a disclosure directly to the consumer. The nature of that disclosure does not change when subscribers choose to display the same content on their television screens. The subscriber's choice to do so does not trigger some new statutory duty on the part of Netflix."

California Civil Code section 1799.3 provides that "no person providing video recording sales or rental services shall disclose any personal information or the consents of any record, including sales or rental information . . . to any person, other than the individual who is the subject of the record, without the written consent of that individual.: Cal. Civ. Code § 1799.3(a). The panel held that Plaintiffs fail to plead a violation of 1799.3 for the same reason they fail to plead a successful VPPA violation.

To read full opinion, please visit:
Panel: Richard C. Tallman and Johnnie B Raylingson, Circuit Judges, and Raymond J. Dearie, Senior District Judge

Argument Date: February 6, 2015

Date of Issued Opinion: July 31, 2015
Docket Number: 12-17045
Decided: Affirmed the district court in granting Netflix's 12(b)(6) motion
Case Alert Author: Brian D. Shapiro
Rachele R. Rickert (argued), Francis M. Gregorek, Betsy C. Manifold, and Marisa C. Livesay, Wolf Haldenstein Adler Freeman & Herz LLC, San Diego, California; Mary Jane Fait and Theodore B. Bell, Wolf Haldenstein Adler Freeman & Herz LLC, Chicago, Illinois, for Plaintiffs-Appellants.
Keith E. Eggleton (argued), Rodney G. Strickland, Jr., Brian M. Willen, and Jessica L. Snorgrass, Wilson Sonsini Goodrich & Rosati, Palo Alto, California, for Defendant- Appellee.
Author of Majority Opinion: Judge Dearie
Circuit: Ninth Circuit
Case Alert Supervisor: Professor Glenn Koppel

    Posted By: Glenn Koppel @ 10/02/2015 07:08 PM     9th Circuit  

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