Court Denies WebMD’s Dismissal Bid in Privacy Case Over Use of Facebook Pixel

Last Friday, the Northern District of Georgia issued an opinion in a Video Privacy Protection Act (VPPA) case lodged against WebMD LLC over its purported disclosure of information to third-party Facebook through use of the Facebook Pixel, a data aggregation tool. Judge Thomas W. Thrash, Jr. opined that the plaintiff, an account holder with both WebMD and Facebook, stated a claim for relief despite WebMD’s myriad defenses.

The suit is similar to other VPPA suits filed against companies insofar as the defendants offer online video content and host Facebook’s Pixel or other data aggregation tools. Here, the plaintiff claims that WebMD disclosed her Facebook ID, her email address, and the video detail, along with other information, to Facebook when she watched videos on a popular website that “provides health information and medical news to individuals and generates revenue through advertising on its website.”

WebMD moved to dismiss the February-filed class action, arguing that the plaintiff failed to state a claim for relief based on multiple pleading flaws.

In his 15-page opinion, Judge Thrash hashed out several disputes including whether the plaintiff  sufficiently alleged that she was a subscriber of WebMD’s e-newsletter and whether that e-newsletter constituted a good or service under the VPPA.

The court found in the affirmative as to both questions. Based on Eleventh Circuit precedent, Judge Thrash ruled that a newsletter signed up for, even if for free, constitutes a subscription. Further, the newsletter itself constituted a good or service under the VPPA because it “provides subscribers with doctor-approved health tips, which WebMD monetizes by selling advertising space alongside those tips to generate revenue.”

Judge Thrash rejected Meta’s other arguments relating to whether WebMD disclosed the plaintiff’s information. The issue of whether the plaintiff recently logged into Facebook, such that transmission of her Facebook ID upon viewing WebMD videos would be possible, “is a question of fact appropriate for resolution at a later stage in this litigation,” the court noted.

The plaintiff and putative class are represented by Lueder, Larkin & Hunter LLC and WebMD by Faegre Drinker Biddle & Reath LLP.