Hulu Privacy Class Action Moves Forward

(CN) - A federal magistrate judge refused to dismiss class claims that Hulu illegally discloses viewer data to third parties.

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In their amended class action complaint, six Hulu subscribers said the video site "repurposed" its browser cache so that the KISSmetrics marketing analyst service could store their private data.

The class claimed Hulu also shared their private viewing choices with Facebook, Google Analytics, and other online market research and advertising companies.

"Hulu's online privacy policy is misleading in that it does not disclose its use of aggressive, rogue exploits of plaintiffs' and class members' computer software to engage in widespread tracking and information sharing," the complaint states.

Hulu's actions "are so outside the boundaries of reasonable expectations that even industry experts had not previously observed these exploits 'in the wild,' that is, in actual use on websites available to the public," the class added.

Claiming that their personal information has economic value, the class members say illegal data exploitation amounts to loss.

In a May filing, Hulu claimed that the class had abandoned six of its seven claims dealing with privacy, computer fraud and negligence, and that the Northern District of California should dismiss those claims with prejudice.

As for the final claim under the federal Video Privacy Protection Act (VPPA), Hulu said that the class could not prove injury to establish standing since that would require a recitation of watched videos, and how third parties received this information.

The VPPA permits disclosure to third parties as an "ordinary course of business," according to Hulu's brief authored by O'Melveny & Myers attorney Randall Edwards.

Though U.S. Magistrate Judge Laurel Beeler of San Francisco largely dismissed the case in June, she deferred ruling on the VPPA claim pending a determination of standing.

Returning to the issue in August, the magistrate said that Congress intended the VPPA to cover new audio-video technologies.

"The question is whether the mechanism of delivery here - streaming versus bricks-and-mortar delivery - ends this case at the pleading stage," Beeler wrote. "Hulu's remaining argument is only that it is not a 'video tape service provider' because the VPPA does not expressly cover digital distribution (a term that did not exist when Congress enacted the statute)." (Parentheses in original).

"Given Congress's concern with protecting consumers' privacy in an evolving technological world, the court rejects the argument," she added.

Beeler refused to dismiss the claim that Hulu collected data outside of the "ordinary course of business."

She also rejected Hulu's argument that the class members are not "consumers" under the VPPA because they did not pay money to watch videos.

"If Congress wanted to limit the word 'subscriber' to 'paid subscriber,' it would have said so," Beeler wrote.

Congress enacted the VPPA in 1988 after a Washington, D.C., newspaper published the video rental history of Supreme Court nominee Robert Bork.

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