Gannett loses bid to dismiss privacy suit after judge finds plaintiff suffered concrete injury under Spokeo

31 January 2017 9:55am

2nd September 2016. By Amy Miller.

Gannett lost its bid to dismiss a privacy lawsuit alleging that the news organization’s USA Today app violated the Video Privacy Protection Act when it shared personal data collected by the app with data brokers without a user’s consent.

Plaintiff Alexander Yershov suffered a concrete “albeit intangible” injury sufficient to sue in federal court, US District Judge F. Dennis Saylor IV in Boston ruled Friday in denying Gannett’s motion to dismiss.

The case is the most advanced of a number of privacy lawsuits filed against apps and websites under the VPPA.

Saylor’s decision will likely help develop Internet privacy law following the US Supreme Court’s decision in Robins v. Spokeo this spring. In the Spokeo, the Supreme Court said that alleging a statutory violation isn’t enough to establish standing to sue in federal court, and plaintiffs must prove they’ve suffered a concrete injury. But the high court left it up to a lower court judge to define concrete injury.

Lawyers for Gannett argued that the suit should be dismissed under Spokeo because Yershov had not suffered concrete harm and therefore didn’t have standing to sue, comparing his claims to bringing “Peeping Tom” allegations against a neighbor. The complaint failed to connect violation of the VPPA to a concrete injury actually suffered by Yershov, they said.

Yershov claimed that every time he viewed a video clip using the USA Today app, it sent his personal information to third-party analytics company Adobe, including the titles of videos he watched, his unique Android ID and his GPS coordinates.

Lawyers for Yershov told Saylor that the Spokeo decision embodied the principle that when Congress passes a law that protects a specific interest, any violation of that protected interest constitutes concrete harm, even if it’s intangible, and confers standing to sue.

Saylor had initially dismissed the suit for failure to state a claim, but the plaintiffs appealed to the US Court of Appeals for the First Circuit. On April 29, a three-judge panel revived the suit, finding that an app user could be protected under the VPPA, and sent the case back for reconsideration.

After analyzing Spokeo and First Circuit decisions, Saylor sided on Friday with Yershov, finding the complaint alleges an intangible harm: the invasion of his privacy interest in his video-viewing history. Determining if that intangible harm constitutes a concrete injury requires an analysis of both history and the judgment of Congress, he said.

Several courts have concluded that Congress enacted the VPPA to protect the privacy of someone’s video-watching history, he said. And an individual’s right to privacy has long been the basis for lawsuits in both English and American courts, Saylor said.

“The VPPA ‘plainly’ provides plaintiffs like Yershov, who allege wrongful disclosure of their [personally identifiable information], with standing and a right to relief,” Saylor said. “The intangible harm allegedly suffered by Yershov from Gannett’s alleged disclosure of his PII is a concrete injury in fact.”