Facts

The Hershey Company's (Hershey) is a multinational company and one of the largest chocolate producers who manufactures and sells chocolate and other snacking products throughout the United States. Rebeka Rodriguez was an individual consumer advocate who viewed the "Say Hola" video on Hershey's website https://www.thehersheycompany.com/en_us/home.html. Hershey used a Facebook feature called "custom audiences" that enables advertisers to identify individuals who have already shown interest in their business. The feature required advertisers to supply user data to Facebook through a tool called Facebook Tracking Pixel. Rodriguez, individually and on behalf of all others similarly situated, brought a class action against Hershey, alleging a violation of the Video Privacy Protection Act (VPPA).

PLAINTIFF'S CONTENTIONS: Plaintiff alleged that defendant was a video tape service provider under the VPPA since defendant's business model involved persuading potential customers to try their products via the use of persuasive marketing videos and that defendant created, hosted, and delivered its videos on its website. Further, plaintiff contended that defendant disclosed personal identifying information by allowing Facebook to identify a user's video-watching behavior. Finally, plaintiff argued that she was a purchaser and consumer under the VPPA because she was genuinely interested in learning more about the goods and services offered by defendants and played videos on the website.

DEFENDANT'S CONTENTIONS: Defendant argued that they were not a video tape service provider because the video on its website were part of its brand awareness and were not defendant's particular field of endeavor as required by the VPPA.

Result

The court granted Hershey's motion to dismiss because it was not a video tape service provider.