Introduction
Video Privacy Protection Act (VPPA) class actions filed against
companies continue to proliferate. Meanwhile, as evidenced by a
recent spate of decisions by the Second, Sixth, Seventh, and Ninth
circuits, courts remain divided on the application of the VPPA
statute to certain businesses and consumers. Although the VPPA was
passed in the now bygone era of Blockbuster and video cassette
rentals, plaintiffs have seized on this seemingly outdated statute
to sue companies that track consumers' online viewing
activities using Meta Pixel and other similar tracking
technologies.
VPPA Legislative History
Legislation now known as the Video Privacy Protection
Act1 was first introduced when a Washington newspaper
published a profile on U.S. Supreme Court nominee Judge Robert
Bork, based on the titles of movies he and his family rented from a
local video store. At the time, this high-profile episode was
dubbed "The Bork Tapes" scandal. A 1988 Senate
Judiciary Committee Report denouncing the public disclosure of
Bork's video rental selections astutely observed that
"[Privacy] is not a conservative or a liberal or moderate
issue. It is an issue that goes to the deepest yearnings of all
Americans that we are free and we cherish our freedom and we want
our freedom. We want to be left alone."2 The VPPA
was enacted shortly thereafter.
VPPA Overview
The VPPA states, in pertinent part, that a "video tape
service provider who knowingly discloses, to any person, personally
identifiable information [PII] concerning any consumer shall be
liable to the aggrieved person."
In summary:
- The VPPA applies to a "video tape service provider" engaged in the rental, sale, or delivery of pre-recorded video cassette tapes or similar audiovisual content.
- A "consumer" means a renter, purchaser, or subscriber of goods and services from a video tape service provider.
- The video tape service provider shall not knowingly disclose "personally identifiable information" related to a consumer's video content materials or viewing habits to third parties without the consumer's informed written consent.
In the past few years, the plaintiffs' class action bar has
seized upon this statute to bring nationwide class actions against
companies that utilize tracking technology – such as Meta
Pixel, Google Analytics, and other similar software code embedded
on their websites – to collect and analyze consumer habits.
This data is commonly shared with third-party tech companies for
targeted advertising purposes.
Importantly, the VPPA allows a "private right of action."
In other words, individuals can sue companies for alleged
violations of the statute and seek recovery of statutory damages,
punitive damages, and attorney's fees. This provision has
incentivized plaintiffs' attorneys to file hundreds of VPPA
class actions in courts nationwide. In 2024, an estimated 250 VPPA
class actions were filed against companies – nearly double
the number of similar suits filed in 2023.
Recent VPPA Appellate Court Decisions
In a recent spate of decisions, federal appellate courts have
addressed whether a named plaintiff is in fact a
"consumer" within the meaning of the VPPA statute –
reaching contradictory conclusions.
Second Circuit
In Salazar v. National Basketball Association3, plaintiff Salazar signed up for a complimentary online newsletter offered by defendant National Basketball Association (NBA). To subscribe to the newsletter, the plaintiff had to provide his personal information, including his email and IP addresses. The plaintiff also alleged that he watched videos on the NBA's website, which used Meta Pixel tracking tools. The plaintiff did not pay for the videos, which were accessible to both subscribers and non-subscribers. The plaintiff further alleged that his video-watching history and Facebook ID were disclosed to Meta by the defendant without his permission and in violation of the VPPA.
The defendant NBA argued that the plaintiff was not a
"consumer" within the meaning of the VPPA. In particular,
it asserted that the plaintiff was not a subscriber of
audiovisual goods or services, as the newsletter did not
constitute pre-recorded audiovisual content. However, the Second
Circuit interpreted the definition of consumer broadly, finding
that if the plaintiff subscribed to any goods or services
(newsletter) offered by the defendant – which also provided
audiovisual content (videos) on its website – the plaintiff
was indeed a consumer protected under the VPPA.
According to the Second Circuit, the VPPA "applies equally to
a business dealing primarily in audiovisual materials (think
Blockbuster) and one dealing primarily in non-audiovisual
materials (think a general store that rents out a few
movies)." However, in an attempt to install some guardrails
around its expansive interpretation, the Second Circuit further
observed that, in the example of the general store, it would only
be liable under the VPPA for disclosing information pertaining to a
customer's video materials – not their "bread-buying
habits."
Seventh Circuit
The Seventh Circuit Court of Appeals similarly adopted a liberal
interpretation of the term "consumer" under the VPPA in
Merchant v. Me-TV National Limited
Partnership.4 Me-TV operated a website
where the public could watch classic television shows without
providing any personal information, nor were there any costs
associated with accessing video content. Me-TV's revenue came
from ad sales. In that case, the plaintiffs subscribed to Me-TV by
providing their email addresses and zip codes. Me-TV subscribers
received additional personalized services, including program
schedules, reminders, etc. The plaintiffs viewed content on Me-TV
while signed into their Facebook accounts. Me-TV allegedly embedded
Meta Pixel into its videos, which enabled Facebook to determine the
plaintiffs' viewing habits in order to sell targeted
advertising. The plaintiffs allege that Me-TV violated the VPPA by
sharing their personal information collected by the Meta Pixel
tracking technology with Facebook.
Me-TV argued that the plaintiffs were not "consumers"
insofar as they did not specifically subscribe to video content
that was available free of charge to everyone on the website.
Instead, the plaintiffs merely signed up for ancillary services
related to video programming. However, the Seventh Circuit
disagreed, finding that the plaintiffs were in fact consumers as
contemplated by the VPPA. As the Seventh Circuit observed, the
complaint adequately alleged that Me-TV is a video tape service
provider. "If plaintiffs had signed up and never watched a
video, but had purchased a Flintstones sweatshirt or a Scooby Doo
coffee mug" offered on Me-TV's website, "then they
would have purchased 'goods' from a 'video tape service
provider.' Nothing in the Act says that the goods or services
must be video tapes or streams." In other words, as long as
the plaintiffs were renters, purchasers, or subscribers of any
goods or services offered by a video tape service provider, they
qualified as consumers for the purpose of asserting a VPPA
claim.
Sixth Circuit
Conversely, in Salazar v. Paramount Global d/b/a 247Sports,5 the Sixth Circuit adopted a narrow interpretation of the term consumer, which required a subscription to audiovisual content – not just any goods or services – from a video tape service provider. In that case, the plaintiff subscribed to an electronic newsletter from 247Sports.com by providing his email and IP address. In addition, the plaintiff viewed content on 247Sports.com, a website owned by Paramount that covers college sports recruiting, while logged into his Facebook account. The plaintiff alleged that he had a digital subscription to the website, which utilized pixel tracking tools. The plaintiff alleged that the pixel enabled Paramount to track and disclose his viewing history, linked to his Facebook ID, to Facebook without his consent.
The Sixth Circuit explicitly rejected the Second and Seventh
Circuits' broad interpretation of a "consumer" under
the VPPA. Instead, the Sixth Circuit opined that a person is a
consumer under the statute "only when he subscribes to
'goods or services' in the nature of 'video cassette
tapes or similar audiovisual materials.'" Here, the
plaintiff only subscribed to a newsletter. He did not subscribe to
audio-visual content that was available to anyone who visited
247Sports.com's website. Accordingly, the plaintiff was not a
consumer under the VPPA.
Ninth Circuit
In yet another recent VPPA decision, the Ninth Circuit explained
that a "video tape service provider" only extended to the
rental, sale, or delivery of prerecorded (versus live) content. In
Osheske v. Silver Cinemas Acquisition Company
d/b/a Landmark Theaters,6 defendant
Landmark operated a website where people could watch movie
trailers, browse show times, and purchase tickets to view movies in
traditional brick-and-mortar theaters. Landmark installed a pixel
or web beacon on its website to transmit user information to
Facebook whenever someone purchased a movie ticket while logged
into their Facebook account. The plaintiff visited Landmark's
website and bought a movie ticket, and alleged that the defendant
violated the VPPA by sharing his personal information (including
the name of the film, the theater location, and his unique Facebook
ID) with Facebook without his consent.
The Ninth Circuit agreed with defendant Landmark that it was not a
"video tape service provider" under the VPPA. In
particular, the court observed that "Landmark does not deliver
any prerecorded 'audio visual materials' to the consumer in
either its ticket sales or its in-theater experiences,"
further noting, "Someone late to a theater showing cannot
rewind the movie, someone needing to use the facilities or desiring
a soft drink cannot pause it, and someone falling asleep cannot
stop and start it again later." The Ninth Circuit also stated
that despite the fact that movies theaters were in "full swing
in the late 1980s," when the VPPA was enacted, "movie
theaters were omitted from the Act." While the Ninth
Circuit's opinion might be limited in its scope, it nonetheless
underscores that the VPPA only applies to the disclosure of
personal information concerning pre-recorded audiovisual
content.
Conclusion
Recent appellate court rulings involving VPPA class actions demonstrate that the interpretation of the statute's key provisions remains unsettled. The strength of legal defenses available to companies at the pleading stage, when considering a motion to dismiss, is heavily influenced by the court and jurisdiction in which the case is pending. Undoubtedly, plaintiffs will continue to file VPPA class actions against companies that utilize pixel tracking technology, now essentially ubiquitous. The best defense is a good offense in terms of conspicuously disclosing the use of tracking tools and obtaining consumers' prior consent by means of a pop-up banner at the outset of any transactions. Moreover, companies should carefully craft their customer agreements, terms, and conditions to include a class action waiver and limitation of liability provisions.
Footnotes
1. 18 U.S. Code § 2710, et seq.
2. Senate Judiciary Committee Report 100-599 accompanying Senate Bill 2361 on the Video Privacy Protection Act of 1988 (Oct. 21, 1998).
3. Michael Salazer v. National Basketball Assn., Docket No. 23-1147 in the U.S. Court of Appeals for the Second Circuit (decided October 15, 2024).
4. David Vance Gardner and Gary Merchant v. Me-TV National Limited Partnership, Docket No. 24-1290 in the U.S. Court of Appeals for the Seventh Circuit (decided March 28, 2025).
5. Michael Salazer v. Paramount Global d/b/a 247Sports, Docket No. 23-5748 in the U.S. Court of Appeals for the Sixth Circuit (decided April 3, 2025).
6. Paul Osheske v. Silver Cinemas Acquisition Company d/b/a Landmark Theaters, Docket No. 23-3882 in the U.S. Court of Appeals for the Ninth Circuit.
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