683 F.Supp.3d 727
M.D. Tenn.2023Background
- Salazar sued Paramount Global (247Sports) alleging a VPPA violation after 247Sports embedded Facebook tracking (pixel/cookies) that transmitted users’ viewed-video data and Facebook IDs to Facebook.
- Salazar was a 247Sports newsletter subscriber who also had a Facebook account; the complaint does not allege he actually watched any 247Sports video content.
- Defendant moved to dismiss for lack of Article III standing (Fed. R. Civ. P. 12(b)(1)) and for failure to state a VPPA claim (Fed. R. Civ. P. 12(b)(6)).
- District court treated standing first, finding the alleged transmission of personally identifiable viewing information a concrete injury and sufficiently traceable to the Facebook pixel installation.
- On the merits the court held Salazar failed to state a VPPA claim because he was not a “subscriber of goods or services from a video tape service provider” as required by 18 U.S.C. § 2710(a)(1); signing up for a newsletter did not establish subscription to audiovisual materials.
- The court denied dismissal for lack of jurisdiction but granted dismissal for failure to state a claim and entered final judgment for the defendant.
Issues
| Issue | Salazar's Argument | Paramount's Argument | Held |
|---|---|---|---|
| Standing — concrete injury | VPPA creates a privacy right; disclosure of personally identifiable viewing info to Facebook is itself a concrete injury | Disclosure alone is not a concrete injury absent additional harm | Court: concrete injury exists — VPPA deprivation suffices under TransUnion and circuit authority |
| Standing — traceability | Pixel installation caused transmission; injury flows from defendant’s conduct | Any transmission depended on Facebook cookies and the user being logged into Facebook, so plaintiffs’ actions (or Facebook’s tech) caused the injury | Court: allegations that defendant installed the pixel sufficiently plausibly trace injury to defendant; no extrinsic evidence from defendant to rebut |
| VPPA scope — who is a “consumer/subscriber” | Newsletter subscribers are ‘‘subscribers of goods or services’’ and thus protected | VPPA requires subscription to audiovisual goods/services; newsletter subscribers are not subscribers to video materials | Court: subscriber in VPPA means subscription to audiovisual materials; newsletter subscription insufficient — dismissal for failure to state a claim |
| VPPA scope — are newsletters "goods or services" of a video service provider | Newsletter is a service provided by the same site and thus covered | Reading VPPA broadly would capture non‑video newsletters and produce absurd results; statute read with §2710(a)(4) limits protection to audiovisual-related transactions | Court: did not need to decide categorically whether newsletters are "goods or services" but held plaintiff not a subscriber of audiovisual goods; claim fails |
Key Cases Cited
- TransUnion LLC v. Ramirez, 141 S. Ct. 2190 (2021) (Supreme Court guidance on concrete injury and third‑party disclosures)
- Spokeo, Inc. v. Robins, 578 U.S. 330 (2016) (Article III standing requires a concrete injury even for statutory violations)
- In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016) (VPPA plaintiffs pleaded concrete injury from disclosure of viewing data)
- Eichenberger v. ESPN, Inc., 876 F.3d 979 (9th Cir. 2017) (VPPA recognizes a substantive privacy right; disclosure alone can confer standing)
- Austin‑Spearman v. AMC Network Entertainment LLC, 98 F. Supp. 3d 662 (S.D.N.Y. 2015) (VPPA statutory violation can constitute injury for standing)
- Van Patten v. Vertical Fitness Grp., LLC, 847 F.3d 1037 (9th Cir. 2017) (discussion of statutory privacy harms in the standing context)
- Perry v. Cable News Network, Inc., 854 F.3d 1336 (11th Cir. 2017) (post‑Spokeo circuit decision recognizing standing for certain statutory privacy claims)
- Robinson v. Disney Online, 152 F. Supp. 3d 176 (S.D.N.Y. 2015) (background on VPPA’s purpose and scope)