Hulu Users Cannot Sue as a Class

SAN FRANCISCO (CN) - A group of Hulu users who claim the website illegally shared their data with third parties cannot sue as a class for Hulu's disclosure of information via Facebook "likes," a federal magistrate judge ruled.

Joseph Garvey is lead plaintiff in "Hulu Privacy Litigation" which claims Hulu "repurposed" its browser cache to let marketing-analysis services store users' private data.

Hulu disputes the claims that it used the analytics service comScore and Facebook "like" buttons to store user data.

Much of the litigation has focused on alleged violations of the federal Video Privacy Protection Act (VPPA), enacted in 1988 after a Washington D.C. newspaper published the video-rental history of Supreme Court nominee Robert Bork.

In December 2013, U.S. Magistrate Judge Laurel Beeler found the VPPA "requires only injury in the form of a wrongful disclosure."

"Hulu's main argument - that the word 'aggrieved' in the statute requires an additional injury - does not change the outcome," Beeler wrote .

In April, Beeler partly granted and partly denied Hulu's request for summary judgment, saying the issue at hand depends on whether Hulu's disclosure was "knowing."

"Throwing Judge Bork's video watch list in the recycle bin is not a disclosure. Throwing it in the bin knowing that the Washington Post searches your bin every evening for intelligence about local luminaries might be," Beeler wrote in the order .

"Considering the statute's reach, the conclusion is that Hulu's transmission of the Facebook user cookies needs to be the equivalent of knowingly identifying a specific person as 'having requested or obtained specific video materials or services.'

"If Hulu did not know that it was transmitting both an identifier and the person's video watching information, then there is no violation of the VPPA. By contrast, if it did know what it was transmitting, then (depending on the facts) there might be a VPPA violation." (Parentheses in order.)

Regarding the metrics company comScore, Beeler found the plaintiffs could not prove the company did anything with their information, and found for Hulu on that issue.

"The evidence shows comScore's role in measuring whether users watched the advertisements. It also demonstrates comScore's interest in recognizing users and tracking their visits to other websites where comScore collects data," Beeler wrote.

"That information is likely relevant to an advertiser's desire to target ads to them. It does not suggest any linking of a specific, identified person and his video habits."

The plaintiffs moved to certify the class of users, claiming Hulu illegally used their Facebook "likes," and a hearing was held in May.

In a new order Tuesday, Beeler found the plaintiffs could not properly define a class because, among other things, "the claims apparently are not amenable to ready verification."

"The court cannot tell how potential class members reliably could establish by affidavit the answers to the potential questions: do you log into Facebook and Hulu from the same browser; do you log out of Facebook; do you set browser settings to clear cookies; and do you use software to block cookies?" Beeler wrote.

"The possibility of substantial pecuniary gain affects this analysis too. That incentive and the vagaries of subjective recollection makes this case different than the small-ticket consumer protection class actions that this district certifies routinely."

Beeler denied the plaintiffs' motion for class certification for that reason.

The judge addressed the plaintiffs' other arguments, finding that while they satisfied some elements needed for class certification, the evidence did not show that "common issues predominate over the individual ones."

"Perhaps subclasses could address the use (or lack of use) of ad-blockers or browser technologies, or whether users stayed logged into Facebook. Plaintiffs have not proposed that subclassing," Beeler wrote.

"Given that even the court's best guess at subclassing would not address the issues about ascertainability and identify the class members, the court finds on this record that common issues do not predominate."

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