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A recent class action settlement involving a video game and DVD retailer serves as a reminder of the risks of the federal Video Privacy Protection Act. The case was brought against DirectToU, a video game and DVD seller and its wholesale partner, Alliance Entertainment. Plaintiffs alleged that the two sent customers’ video game purchase and viewing information to social media sites. Notably, they argued, this information was tied to personal identifiers, and was sent without consent and thus in violation of both VPPA.
The information sent by the two occurred after someone bought a video or game. That purchase behavior was sent to social media platforms through tracking pixels. Users of the site did not know the transfer occurred, or that it was then linked to them on social media. The website terms included an arbitration provision, which Defendants are relying on to retain their right to seek to compel individual arbitration of the claims of Plaintiffs and the Settlement Class should the settlement agreement not become final, and also for claims of persons who exclude themselves from the settlement class.
The companies have denied wrongdoing, but nevertheless have agreed to change their pixel settings so that social media platforms do not receive specific product information. Second, the companies have agreed not to share information that identifies a customer as someone who bought or asked for specific video content with any third party unless otherwise permitted by law. These steps were in addition to the almost $1.6 million penalty.
As those who have been tracking these cases will remember, VPPA prohibits sharing personally identifiable information about a customer’s video purchases or viewing history without consent.
Putting it into Practice: VPPA may be an old law, but it is one to keep track of in the current digital world. To the extent that passive tracking tools are capturing video purchase behavior and sharing with other sites, class action attorneys are continuing to use the law as a tool. This case is a reminder to look at whether video viewing or purchase behavior is being captured and shared through passive tracking tools. It is also a reminder to check your arbitration provisions.
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