Tennessee federal court dismisses a Video Privacy Protection Act claim because a subscriber to a newsletter without audio-visual content cannot plausibly allege a VPPA violation
Although a digital subscriber to an online newsletter may have standing to sue under the Video Privacy Protection Act ("VPPA"), 18 U.S.C. § 2710(b)(1), if the newsletter subscription contains no audio-visual content, that digital subscriber is not a "consumer" within the meaning of the VPPA and cannot plausibly allege the elements of a VPPA claim even when viewing digital audio-visual content online.
In a July opinion issued in Salazar v. Paramount Global, the Court granted in part and denied in part the defendant's motion to dismiss a putative class action complaint, finding that the plaintiff had standing but could not state a claim for violating the VPPA.[1]
The Plaintiff alleged that 247sports.com (owned by defendant Paramount) violated the VPPA by disclosing subscribers' viewed digital videos to social media. According to the complaint, to register for 247Sports.com, individuals were required to sign up for an online newsletter by providing their email address and IP address.[2] Defendant had installed a tracking pixel on 247Sports.com, which allowed for the collection of data of those subscribers who had a social media account. If subscribers were logged into their social media account while watching video content on 247Sports.com, 247Sports.com sent their personal information to that social media provider. Plaintiff had a social media account since 2021 and subscribed to 247Sports.com in 2022. Plaintiff did not allege, however "curiously," that he had ever accessed video content from 247Sports.com or that the newsletter contained audio-visual content.
The VPPA prohibits a "video tape service provider" from "knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider." 18 U.S.C. § 2710(b)(1). The VPPA defines a "video tape service provider" as "any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials. . . ." Id. at § 2710(a)(4)(emphasis added). A "consumer" is "any renter, purchaser, or subscriber of goods or services from a video tape service provider." Id. at § 2710(a)(1).[3]
In Salazar, the Court accepted prior precedent that a wrongful disclosure or statutory violation "constitutes an injury sufficient to confer Article III standing" such that an allegation that "personally identifiable information was transmitted … in violation of the VPPA identifies a concrete harm for standing purposes" and that the "concrete injury [was] fairly traceable to Defendant's conduct." However, the court reasoned that the statute protects only injured individuals who fall within the VPPA's definition of "consumers," and that definition does not include a consumer of just any goods or services from a service provider—only consumers of audio-visual materials. The court, agreeing with and adopting the reasoning in Carter v. Scripps Networks LLC,[4] noted that the VPPA's definitions of "video tape service provider" and "consumer" should be read and understood together. Thus, under the court's reasoning, the scope of "consumer" should be cabined to the rental, sale, or delivery of audio-visual materials.[5]
Applying this reasoning to the alleged facts, the court concluded that because the plaintiff had subscribed to a newsletter that contained only team-specific news and no video content, he was not a "consumer" within the meaning of the VPPA, and his claim was dismissed. "The plaintiff's interaction with the website … has nothing to do with video content and is ill suited for a claim under the Video Privacy Protection Act."[6]
If the interpretation of the VPPA applied by the district courts in Carter and Salazar is affirmed by the Sixth Circuit or adopted more broadly in other jurisdictions, it offers a level of protection from VPPA claims for providers of online newsletters and/or audio-visual content that use analytics to provide personal information of users who view video content on the providers' websites. In essence, this reading of the VPPA would mean that any plaintiff seeking to pursue a VPPA claim must plausibly allege that he or she is a "renter, purchaser, or subscriber" of audio visual content of the provider to overcome a motion to dismiss. Stated differently, online content providers who share users' video viewing information with third parties (such as social media), would be shielded from VPPA liability unless the users in question specifically rent, purchase, or subscribe to audio-visual content from that provider. Whether this view will be more widely adopted is yet to be seen. As recognized by the Court in Salazar, not all courts have taken this approach.[7] The courts in Salazar and Carter relied on canons of statutory interpretation and the VPPA’s legislative history to reach their conclusions, and it remains to be seen if other courts will follow suit.
[1] Salazar v. Paramount Global d/b/a 247Sports, No. 3:22-CV-00756 (M.D. Tenn. July 18, 2023).
[2] Plaintiff provided no background information on 247Sports.com relevant to the claims and did not explain what "register[ing] for 247Sports.com" meant or what a "digital subscriber" was other than to simply subscribe to 247Sports.com's newsletter. Importantly, "as part of his subscription, [Plaintiff] receives emails and other communications from 247Sports.com," but any website visitor "can watch videos on 247Sports.com regardless of whether they sign up for the Newsletter."
[3] Plaintiffs in earlier VPPA cases argued that online access to video content qualified the website owner as a "video tape service provider" because that definition included "any person engaged in the business … of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials. . . ." 18 U.S.C. § 2710(a)(4) (emphasis added). Courts agreed and held that online streaming video content is covered by the VPPA despite the statute's emphasis on "prerecorded video cassette tapes" and coverage directed initially at "bricks-and-mortar stores." In Re Hulu Privacy Litigation, 2012 WL 3282960, *4-6 (N.D. Cal. 2012) (VPPA applies to "new technologies" such as online distribution of pre-recorded video content). Here, in Salazar, "the Court assume[d] without deciding that Defendant is a 'video service provider' under the VPPA."
[4] Carter v. Scripps Networks LLC, No. 22-cv-2031, 2023 WL 3061858 (S.D.N.Y. Apr. 24, 2023)
[5] The courts in both Salazar and Carter referenced legislative history in support of their reasoning. See Salazar at 34, quoting Carter, 2023 WL 3061858 at *6 ("They were subscribers to newsletters, not subscribers to audio visual
materials.")
[6] The plaintiff in Salazar appealed the decision to the Sixth Circuit (No. 23-5748). The court has not yet set a briefing schedule or a date for oral argument. The plaintiff in Carter did not appeal the dismissal of their VPPA claim.
[7] Compare Lebakken v. WebMD, LLC, 640 F.Supp.3d 1335, 1340 (N.D. Ga. 2022) (a VPPA “consumer” need only “subscribe to ‘goods or services from a video tape service provider,’ not a video service”) with Salazar 2023 WL 4611819 at *11 (“the [VPPA] plaintiff must be a subscriber of goods and services in the nature of audio-video content.”)(emphasis in original)
