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Hulu Can't Shake Privacy Suit

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United States Magistrate Judge Laurel Beeler last week denied a summary judgment motion by Hulu, LLC, to dismiss a putative class action invasion of privacy suit brought by users of the on-demand streaming video Web site, according to a Reuters wire service article.

The case, In re Hulu Privacy Litigation (Case No. 11-03764I), brought in the United States District Court for the Northern District of California, alleges that Hulu violated the Video Privacy Protection Act ("VPPA") [Pub. L. 100-618] when it purportedly allowed access to users' viewing history to Facebook, Inc. and comScore, Inc. without the users' permission.

Hulu's unsuccessful motion to scuttle the suit argued the plaintiffs were not aggrieved persons under the VPPA because they hadn't sustained actual damages. Additionally, Hulu contended certifying plaintiffs for a class action was untenable because a substantial number of its users employ fake identities.

Judge Beeler, however, without ruling on the merits of the suit, said VPPA merely "requires only injury in the form of a wrongful disclosure," in denying the summary judgment motion. VPPA was enacted in 1987 by Congress in a knee-jerk response to the Washington, D.C. City Paper publishing a record of video store movie rentals by then U.S. Supreme Court nominee Robert Bork.

The plaintiffs, whom the Reuters article reported are scattered among New York, Illinois and California, want $,2500 per alleged VPPA violation, along with punitive damages and costs. They allege Hulu sent their personal viewing histories to Scorecard Research, a market research component of comScore, Inc., and to Facebook, Inc., which allegedly linked the video selections to Facebook registration data, according to the Reuters article.

Hulu is a joint venture of News Corp., Walt Disney Co. and Comcast Corp. through Fox Broadcasting, ABC and NBC Universal, respectively. The venture is expected to generate $1 billion in revenues this year, according to Reuters.

Another motion to dismiss the case is slated to be heard in February, 2014, in which Hulu is expected to argue that it did not knowingly transmit allegedly protected data to marketing and social media outlets in violation of VPPA.

Magazine Media Giant Bolsters TV Holdings

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Des Moines-based Meredith Corp. has added to its stable of tv stations by acquiring two stations from Gannett Co. for $407 million, mediabistro.com FishbowlNY reported.

Meredith adds Top 25 Market St. Louis' KMOV-TV and KASW-TV in Phoenix to its holdings of 12 television stations and approximate 30 magazines with the purchase, which is expected to be finalized during the first quarter of 2014 pending FCC approval. The media conglomerate already owns Phoenix CBS affiliate KPHO-TV.

UPDATE: Love Twibel Case Slated for January Trial

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Los Angeles Superior Court Judge Michael Johnson last week denied a summary judgment motion by attorneys for Courtney Love, clearing the way for her to become the first celebrity to go through a twibel trial for her alleged defamatory statements against her former attorney, The Hollywood Reporter reported last week.

The 49-year-old Love, actress, chanteuse for Hole, widow of Nirvana front man Kurt Cobain, gossip column fodder and overall train wreck, was sued by attorney Rhonda Holmes, whose firm, Holmes & Gordon, represented Love in a 2008 fraud claim against Cobain's Estate, until Love terminated her (see "TUOL" post 5/27/11). The alleged defamatory tweet by Love: "I was f------ devestated [sic] when Rhonda J. Holmes esq. of San Diego was bought off @FairNewsSpears perhaps you can get a quote."

Judge Johnson rejected Love's attorneys' argument that the allegedly offensive statement constituted Internet rhetorical hyperbole/opinion and was incapable of a defamatory meaning. Likewise, Judge Johnson said defendant's claim that the statement did not identify the plaintiff law firm by name, an essential element of a defamation count, was an issue to be decided by a jury.

The plaintiff will have to satisfy the actual malice standard to sustain its twibel claim; in other words, that Love knew her accusation that the plaintiff firm was bribed was false or that she made the alleged claim with reckless disregard of its truth or falsity.

According to newspaper accounts, Love allegedly agreed to settle the suit for $600,000 and publish a retraction, but did not follow through. The case is set for trial January 13, 2014, barring a settlement.

UPDATE: FCC Allows Media Mergers

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The FCC last week approved the mergers of Belo Corp. and Gannett Co. (see "TUOL" post 6/13/13) and the Tribune Co. acquisition of Local TV LLC (see "TUOL" post 7/1/13), Broadcasting & Cable's Web site reported.

The FCC found that neither consolidation violated its rules and considered both acquisitions in the public interest.

Fla. Appeals Court Rules Judge Wrongly Withheld Release of Docs in Murder Case

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Florida's First District Court of Appeal last week unanimously boosted the Sunshine State's Public Records Act, ruling that a trial judge in a murder case wrongly restricted the release of discovery documents, the Florida Times Union reported.

Judge Russell Healey, presiding over the murder trial of Michael David Dunn, issued an order delaying for 30 days the release to the public of documents shared by prosecutors with defense counsel so that he could review them for potential prejudice, according to the Times Union.

Under Florida's Public Records Act [Fla. Stat. secs. 119.01-119.15 (1995)], "[A]ll state, county and municipal records shall at all times be open for a personal inspection by any person." Despite the appellate panel's ruling, either side in the Dunn case could seek a protective order from Judge Healey barring the release of specific records to the public that would require an evidentiary hearing.

Jury Gives Warhol Portrait of Fawcett to O'Neal

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After a three-week trial, a Los Angeles jury voted 9-3 to award an Andy Warhol portrait of the late actress Farrah Fawcett to her decades-long companion, actor Ryan O'Neal, rather than her alma mater, the University of Texas, the Associated Press reported.

After Fawcett, who gained stardom in tv's Charlie's Angels, died of anal cancer in 2009, her estate bequeathed her art collection to the Univ. of Texas. O'Neal, who became a star in the '60s tv version of Peyton Place and whose personal life has been a soap opera ever since, removed from Fawcett's condo one of two 1980 Warhol portraits of the actress with the permission of her estate's trustee that O'Neal claimed was gifted to him by the painter for setting up the portrait session with Fawcett.

The jury sided with O'Neal, despite evidence from the university, including a loan agreement signed by Fawcett to the Warhol Museum that listed her as the owner of both portraits. The contested painting's value was assessed during the trial as ranging from $800,000 to $12 million, according to the AP article.

Earlier this year, a California appellate court allowed O'Neal's defamation suit to proceed against producer Craig Nevius who allegedly accused O'Neal of filching the portrait (see "TUOL" post 2/15/13).

ABC Bars the Door to 'Katie'; No 3rd Season for Gabfest

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High costs and disappointing ratings combined to sink Katie, Katie Couric's syndicated daytime yakathon, which will not return for a third season, the show's distributor, Disney-ABC Domestic TV, announced this week.

As reported in Ad Age, Capitalnewyork.com and elsewhere, Katie will cease production in June 2014, and air reruns through next September. The show's debut in September 2012, drew record ratings, and the gabfest ratings remained in the top 10 among daytime syndicated programs, but was expensive to produce and had seen its audience wane.

Couric, who reportedly pulled down a cool $20 million to join ABC (see "TUOL" post 6/6/11), recently announced plans to join Yahoo! as the Web site's global news anchor (see "TUOL" post 11/25/13).

FCC Looking at Non-Concussion-Related NFL Blackouts

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The FCC yesterday released a proposed rule-making that would eliminate sports-blackout rules created in 1975 that prohibit broadcasting NFL games in markets in which the home team doesn't sell-out the stadium, the Los Angeles Times reported today.

Final action on the proposal wouldn't occur before Spring 2014, at the earliest, the Times reported, but proponents, including Sen. John McCain (R.-Ariz.) and Sen. Richard Blumenthal (D.-Conn.) and opponents, the National Football League and the National Association of Broadcasters, are already girding for battle.

Advocates for eliminating the blackout point out that when the broadcast restriction was first imposed, ticket sales were the NFL's bread-and-butter, whereas now, merchandise and television are the league's principal revenue sources.  Opponents fear no-blackout means pay-tv channels will swoop in to air the gridiron contests at the expense of  revenues to local free broadcasters.

Magazines--Fewer Start-ups, Fewer Closures--Period(ical)

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Citing the annual MediaFinder year-end report, Folio magazine (www.foliomag.com) reported 2013 marked five-year lows in the magazine industry for start-ups (185) and closures (56).

Industry watchers who see the glass as half-full will note the 3:1 ratio of periodical launches to shutdowns as evidence of a stabilizing of the industry. On the other hand, the 185 debuts are 18 percent fewer magazine launches than 2012 figures, according to the Folio article.

Food magazines and women magazines were the most popular genres for start-ups, with 23 new food titles and 13 new titles for women.  On the downside, sports magazines were the hardest hit titles among shutdowns.

Politico: USA Today to Expand Regional Reporting: Will It Cover USA?

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Chicago, Boston, Las Vegas and Miami will get more exposure in Gannett Co.-owned flagship USA Today as the daily intends to bolster its regional coverage of breaking news and enterprise stories, Politico reported this week.

USA Today reporter Alan Gomez already has his marching orders for 2014 as he will relocate to Miami where he also will be the daily's correspondent for Latin America and South America, according to the Politico article.  USA Today has endured a turbulent 2013, doubling its newsstand price, waffling about erecting a paywall and thinning its newsroom herd through voluntary retirements (see "TUOL" posts 9/26/13 & 3/13/13).

USA Today, a hotel chain fave because it slips so easily under guest room doors, is further increasing its brand as Gannett plans in the coming year to insert a condensed version of the daily into 35 smaller dailies in its newspaper empire, with a goal toward ultimately appearing in all 81 of its print properties, according to Politico.

Gallup Poll: Journos Low on the Ethics Chain

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A  random Gallup poll earlier this month of more than 1,000 adults nationwide found only one in five considered journalists honest and ethical, according to posts by Fishbowl NY and Poynter.org.

The poll, "U.S. Views on Honesty and Ethical Standards in Professions," revealed only 21 percent of those queried said newspaper reporters boasted high honesty and ethical standards, the same percentage scored by attorneys.  Television journalists were close behind, with only 20 percent of those polled concluding they were honest and ethical.  In contrast, nurses received an 82 percent favorable rating.

One Poynter faculty ethicist suggested popular opinion was shaped somewhat by the portrayal of journalists in entertainment as smarmy and unethical. All told, over the past 40 years, roughly one-third of the public participating in the Gallup poll found journalists of high honesty and ethical character.

Math is not the strong suit of the pristine staff of "TUOL," but as a journalist and an attorney, will assume 42 percent  of the public holds us in high regard.