Anyone following trends in consumer class action litigation will know that consumer privacy was a primary focus of the plaintiff’s bar in 2023. And there are no signs this uptick in consumer privacy claims is slowing any time soon. Although the claims center around use of tracking technology or analytics functions on consumer facing websites, several different statutes and claims have been asserted, including violations of state wiretap statutes and the Video Privacy Protection Act (“VPPA”).
Although these cases are largely at the motion to dismiss stage, and therefore there is little insight into how certain key defenses will play out, some recent decisions surrounding VPPA claims have shifted the landscape in certain defendant’s favor.
The VPPA provides that “a video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person.” 18 U.S.C. 2701(b)(1). That is, a video tape service provider cannot knowingly disclose, without the consent of the consumer, his or her personal video viewing information, to a third party. In these class actions, plaintiffs are alleging that if a website they visit to watch a video has a tracking pixel embedded in its code, the visitor’s video viewing information will be disclosed to the third party associated with that pixel without the visitor’s consent. If this activity is deemed a violation of the VPPA, the plaintiff stands to recover $2,500 per violation. In a class action where the class members are visitors to a website, the exposure can be in the tens of millions, if not higher.
There are, however, some limitations in the statute as to who can sue and be sued, and recent case decisions have been helpful to clarify those limits, particularly in the context of who is a video tape service provider and who is a consumer.
Definition of Video Tape Service Provider narrowed
In Carrol v. General Mills, Inc., the plaintiff filed a putative class action against General Mills for violation of the VPPA. The plaintiff alleged he had purchased and eaten General Mills products in the past and had downloaded the General Mills mobile app. 2023 WL 6373868, *1 (C.D. Cal. Sept. 1, 2023). He then used the mobile app to watch a video titled “Today’s Experiment, Carbonation Baking.” Id. According to the plaintiff, because the General Mills app has pixel tracking technology installed and he watched the video while he was simultaneously logged into the site, the pixel caused information about the video he watched to be disclosed to the site without his consent. Id. On the motion to dismiss, the court made a few key findings that resulted in the dismissal of the plaintiff’s VPPA claim. First, the court analyzed the definition of Video Tape Service Provider (“VTSP”), which is “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 *3. The court found that based on the allegations, General Mills could not be found to be “engaged in the business” of delivering selling or renting audio visual material. Id. Specifically, the court stated where the allegations “do no more than show that videos are part of General Mills’ marketing and brand awareness” and do not indicate that the videos themselves are profitable, there is not enough to say that General Mills is a VTSP. Id.
Second, the court considered whether the plaintiff qualified as a consumer for purposes of a VPPA claim. A consumer is defined as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. 2701(a)(1). The court rejected the idea that the plaintiff could be a consumer by alleging that he had purchased and eaten General Mills products in the past. Id. at *4. Rather, the court found that the goods and services rented, purchased, or subscribed to must be the audiovisual materials. Id.in other words, “a customer’s non-video transaction plays no part.” Id. Thus, because the plaintiff failed to allege that General Mills was a VTSP or that he was a consumer, the court granted the motion to dismiss.
Definition of Consumer narrowed
Another defense-friendly development in the VPPA case law relates to the definition of subscriber. In many cases, plaintiffs allege that subscribing to a newsletter, app, or having an account with a defendant is enough to establish plaintiff is a consumer under the VPPA. There have been a string of recent decisions across the country interpreting subscriber to be much narrower. In particular courts have found that where the allegations cannot link the subscription to any kind of special access to video content the plaintiff is not a consumer within the meaning of the statute. Lamb v. Forbes Media LLC, 2023 WL 6318033, *13 (S.D.N.Y. Sept. 28, 2023); Brown v. Learfield Communications LLC, No. 23-cv-00374 (W.D. Tex. Jan. 29. 2024); Pileggi v. Washington Newspaper Publishing Co., 2024 WL 324121, 10 (D.D.C. Jan. 29. 2024). In the Brown case, because the plaintiffs did not allege that their “status as a newsletter subscriber was a condition to accessing the site’s videos, or that it enhanced or in any way affected their viewing experience, they had not alleged he was a subscriber of video content. Likewise, the Pileggi court found that “merely alleging that she visited the Washington Examiner website and watched videos on that site, wholly separate from her newsletter subscription breaks the link between the service to which she was a subscriber and her assessing of audio-visual content” which was fatal to her claim.
These decisions narrow the scenarios under which a valid VPPA claim can be brought and lessen the potential risk that any website operator with any video content is a potential target.
