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Ninth Circuit Finds Consumer Standing in ESPN Privacy Case

By William Vogeler, Esq. | Last updated on

In football, a quarterback usually scores through others -- like a running back who takes a handoff and runs the ball into the end zone.

Chad Eichenberger might feel a little like a quarterback in his case against ESPN. He sued the sports channel for invasion of privacy when it disclosed his video preferences to an analytics service.

A judge dismissed the case, and a federal appeals court affirmed, because nobody could actually identify him from the disclosure. But Eichenberger did have standing to sue, the U.S. Ninth Circuit Court of Appeals said, and that set up the play for the next plaintiff -- like a handoff.

Standing to Sue

Standing has been a problem for plaintiffs claiming invasion of privacy under the Video Protection Act of 1998 and similar statutes. For example, the Second Circuit recently ruled that plaintiffs lacked standing to sue over biometric collection of data because they couldn't show a real risk of harm.

In Eichenberger v. ESPN, Inc., the network argued that the plaintiff had not alleged a concrete claim. The Ninth Circuit, however, distinguished Eichenberger's case from other decisions that have required an actual harm for statutory violations.

"Privacy torts do not always require additional consequences to be actionable," the judges said.

Ultimately, the U.S. Supreme Court may have to revisit the issue. But it's not likely in Eichenberg's case because ESPN won on other grounds.

"Personally Identifiable Information"

The Ninth Circuit affirmed dismissal of the case because the plaintiff's information, which was captured on a device he used to watch programs, was not "personally identifiable information" under the VPPA.

Adobe Analytics obtained limited information from ESPN, such as the device serial number and videos watched. But the company gathered other information, such email addresses, account information, and Facebook profiles, from other sources.

Then Adobe aggregated the information and returned it to ESPN for advertising purposes. Without Adobe's independent information and analytics, the appeals panel said, it was not "personally identifiable information."

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