Judge Sides with Hulu, Denies Certification in Privacy Suit

Hulu customers who claim their video browsing information was illegally shared with Facebook were denied class certification by a California judge this week. The lawsuit was brought under the Video Privacy Protection Act, and plaintiffs claim that their information was shared with third parties without their consent. Earlier this week, however, Judge Laurel Beeler ruled that class certification – the process that defines who exactly will be covered by the lawsuit – was unascertainable due to difficulties in knowing for sure how customers used Facebook and Hulu.

Judge Beller did, at least, deny certification without prejudice, meaning a narrower class definition may well be acceptable in the future.

Specifically, the judge agreed with Hulu, who argued that the class - individuals who used Hulu and Facebook between April 2010 and June 2012 – likely included an unknown number of joint users. It would be near impossible, Hulu said, to adequately determine how information had been sent to Facebook, as some video-viewing histories were shared using a “c-user” browser cookie – a format that only works if individuals have logged into Facebook using default settings, then logged into Hulu, within a four-week time period.

Plaintiffs argued in return that self-reporting would be enough to define and identify the class, but Judge Beeler wasn’t swayed:

Judge Beller did, at least, deny certification without prejudice, meaning a narrower class definition may well be acceptable in the future. Beeler even provided a few suggestions for subclasses, pointing out that users who had clicked the box enabling “c-user” cookies when logging into Facebook or Hulu might be eligible to take part in the lawsuit – although Hulu is likely to challenge this class on the grounds that self-reporting is inadequate to identify members.

“The question is, how does one ascertain who is in the class or subclasses?” she said.

It’s always a shame to see a privacy suit struggling because of the defendant’s arguments. In this case it’s especially annoying: instead of arguing that the information wasn’t shared, Hulu has simply pointed out that it’s going to be hard to work out whose information was shared. In a world that’s increasingly interconnected but also more wary than ever of intrusions into individuals’ privacy, it’s not a good sign.

The Video Privacy Protection Act was originally designed to prevent the "wrongful disclosure of video tape rental or sale records,” and has been instrumental in preventing companies such as Facebook, Hulu and Netflix from sharing viewers’ video browsing histories. Netflix has even gone so far as to encourage customers to lobby their representatives to alter the law – but will consumers want this, now? Clearly many Hulu customers are not happy that information about the videos they watch – information they consider to be private - has been shared with third parties. It’s an odd twist of technology that an act initially passed to protect what is now a dying trade (that of video rentals) has become more important than ever as new digital video streams go from strength to strength.

Hopefully plaintiffs in the Hulu privacy lawsuit In re: Hulu Privacy Litigation, case number 3:11-cv-03764, in the U.S. District Court for the Northern District of California will be able to get classes and subclasses certified, and the suit can continue.