The Desk appreciates the support of readers who purchase products or services through links on our website. Learn more...

Judge says Tubi must face privacy-related lawsuit

The lawsuit, which is seeking class-action status, claims Tubi improperly disclose the personal information of streaming customers to some advertisers.

The lawsuit, which is seeking class-action status, claims Tubi improperly disclose the personal information of streaming customers to some advertisers.

Fox Corporation's Tubi streaming service contains thousands of movies and TV shows. (Image via Tubi app on Rokui, Graphic by The Desk)
Fox Corporation’s Tubi streaming service contains thousands of movies and TV shows. (Image via Tubi app on Rokui, Graphic by The Desk)

A federal judge says Fox Corporation’s free streaming service Tubi must fight a privacy-related lawsuit in court, and cannot move the matter to arbitration.

The order, handed down last Friday, followed a complaint from an Illinois woman who alleged Tubi violated her privacy rights and that of other streamers by disclosing certain personal information to advertisers without their explicit consent.

The plaintiff claims the action violates the Video Privacy Protection Act (VPPA), a federal law that is meant to prevent companies from sharing a person’s video purchase or viewing history with other companies, including advertisers.

In this case, the plaintiff said Tubi improperly disclosed some of her account activity to advertisers, who commercials stream alongside Tubi’s free movies and TV shows.

During the case, attorneys for Tubi filed a motion asking for the judge to enforce an arbitration clause found in its terms of service, saying the plaintiff agreed to handle any disputes in that forum instead of a court of law when she signed up for her account. Attorneys also asked the judge to dismiss the plaintiff’s complaint on similar logic.

Last Friday, the federal judge overseeing the case denied Tubi’s requests, saying the mere placement of a link to Tubi’s terms of service on its sign-up page did not constitute an explicit agreement to arbitrate any legal matters.

“[The plaintiff] cannot rest on the mere fact that she did not actually notice the prompt on the bottom of the registration page,” Judge John Tharp wrote in his ruling. He continued: “By the same token, Tubi’s mere placement of its prompt somewhere on its mobile app registration page is not dispositive, either.”

The judge weighed whether the link to Tubi’s terms of service was clear and conspicuous enough for any person to notice when they signed up for an account. Among other things, he examined “the size of the prompt,” the “use of a bold font or contrasting colors,” and “whether the user can see the link to the terms without having to scroll.”

In this instance, Tharp said Tubi’s placement of the link “is in the smallest font on the screen, and it is very nearly at the bottom.” He also found that Tubi’s use of gray font for the link “contrasts poorly with the background.”

“A user does not seem to need to scroll to see it, a fact that favors Tubi’s position — but at the same time, even if a user does not need to scroll to see the prompt, a reasonable user registering for a Tubi account would not be expected to read it,” Tharp concluded.

Tharp also refused to dismiss the complaint against Tubi, finding that “[the plaintiff’s] complaint, once stripped of its legal conclusions and bare recitals of VPPA’s elements, sets forth sufficient facts to make it plausible that Tubi unlawfully disclosed [the plaintiff’s personal information] to third parties.”

“The relevant pieces of circumstantial evidence, such as Tubi’s own words saying that it might engage in various aspects of the accused conduct, in conjunction with the other factual allegations about Tubi’s practices, its emphasis on hyper-specific ad targeting, and business model-some supported by suggestive documentary evidence-are sufficient to support the plausibility of [the plaintiff’s] claim,” the judge wrote in his order.

The original complaint against Tubi is seeking class-action status and unspecified damages for the plaintiff and all similarly-situated Tubi streaming customers.

Get stories like these in your inbox, plus free breaking news alerts on business and policy matters involving media and tech.

Get stories like these in your inbox, plus free breaking news alerts on business and policy matters involving media and tech.

Photo of author

About the Author:

Matthew Keys

Matthew Keys is a nationally-recognized, award-winning journalist who has covered the business of media, technology, radio and television for more than 10 years. He is the publisher of The Desk and contributes to Know Techie, Digital Content Next and StreamTV Insider. He previously worked for Thomson Reuters, the Walt Disney Company, McNaughton Newspapers and Tribune Broadcasting.
Home » News » Industries » Streaming » Judge says Tubi must face privacy-related lawsuit