Texas class action filed against Blockbuster for violation of video privacy

Michelle Massey, East Texas Bureau Apr. 16, 2008, 6:00am

MARSHALL -- Uncomfortable with the idea that their friends would know they just rented "High School Musical" for the 57th time, users of Facebook have filed a class action against Blockbuster for releasing their video rental histories and other personal information to the Internet networking site.

On behalf of herself and others similarly situated, Dallas County resident Cathryn Elaine Harris filed the class action on April 9 in the Marshall Division of the Eastern District of Texas. The suit alleges Blockbuster violated the Video Privacy Protection Act.

Harris alleges that Blockbuster Inc.'s online Web site transmitted her personal information to Facebook in violation of the Videotape Privacy Act, which was enacted "to protect [certain personal information of an individual who rents video materials] from disclosure."

The complaint alleges that Blockbuster knowingly distributing plaintiffs' video tape rental and sales records to "third parties who did not have the informed, written consent of Plaintiffs or class members at the time of the disclosure."

The suit alleges that the violation occurred after Facebook implemented its new computer program, Beacon, as an advertising element. The Beacon program connects businesses with users by allowing affiliate-business Web sites to place "tags" on their pages.

Once an individual goes to the affiliate's Web site and performs certain actions -- like renting a movie -- the tag then loads the information into Facebook's programming software. Facebook then creates a pop-up that displays the individual's actions to their Facebook profile.

The suit alleges that Facebook will gather the information whether or not an individual has chosen to publish that information.

Twelve major corporations joined with Facebook to share information collected from their respective Web sites.

According to the class complaint, Blockbuster participated by placing the Beacon tag on their Web site to "gather and distribute personally identifiable information about a consumer every time the individual performs an action, such as renting or buying a movie, or placing movie selections into the user's queue."

The plaintiff alleges that if a person bought a movie from Blockbuster online and does not choose to opt-out or does not opt-out in time, the movie selection was placed on the consumer's Facebook profile news feed and in their friends' news feeds.

The lawsuit states for example, on the individual's Facebook profile a summary of the actions are displayed that reads, "John added 'I Am Legend' to his queue on Blockbuster.com." Below the summary are options that allow, "learn more/this isn't me and no thanks." The "no thanks" option is the only action presented to the user to opt-out of sending the summary to Facebook friends.

When users began to complain, Facebook publicly apologized for the manner in which the Beacon advertising system was launched stating, "the problem with our initial approach in making it an 'opt-out' system instead of 'opt-in' was that if someone forgot to decline to share something, Beacon still went ahead and shared it with their friends."

Facebook then released a privacy control to turn off Beacon completely. Shortly thereafter, Blockbuster began notifying online users that a summary of their actions would be sent to Facebook. The plaintiff states that if the user does not mark the privacy feature to tell Blockbuster not to send summaries to Facebook, then the information is sent before the user has a chance to decline the distribution of the information.

The plaintiffs are seeking the liquated sum of $2,500 which is the remedy made available by the Video Privacy Protection Act. Further, the suit is seeking punitive damages, attorney's fees and for the court to order that Blockbuster destroy any personal information illegally distributed.

The plaintiffs are demanding a trial by jury.

Dallas attorneys Jeremy R. Wilson, Thomas M. Corea and Preston J. Dugas III of The Republic Center and George A. Otstott and Ann Jamison of the law firm Otstott and Jamison PC are representing the plaintiff and potential class members.

The case has been assigned to U.S. District Judge David Folsom.

Case No.: 2:08cv00155

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