The Video Privacy Protection Act (“VPPA”), a federal statute enacted in 1988, is gaining new relevance in recent years as plaintiffs bring lawsuits with the goal of enforcing online privacy rights. 2024 saw a continuation of this trend. The spike in cases brought under the VPPA has significant consequences for companies that use third-party pixel tracking tools. As one 2024 Second Circuit case stated, the VPPA is “no dinosaur statute” and the spike in litigation under the VPPA in 2024 reflects that reality. Salazar v. Nat'l Basketball Ass'n, 118 F.4th 533 (2d Cir. 2024).
While the law was originally intended to apply to traditional, brick-and-mortar video stores, the VPPA has been particularly relevant in recent years in cases involving the use of pixels or other web trackers in videos shown online or through streaming services. Plaintiffs have been aggressive in bringing cases under the law under the theory that an entity’s use of pixels violates the VPPA by tracking an individual’s viewing history and collecting other personal information. This has been a trend under other areas of law as well, where plaintiffs have leveraged older privacy laws (such as California’s Invasion of Privacy Act) to bring cases against companies’ use of online tracking technologies.
In this post we examine litigation trends in cases brought under the VPPA in the last year.
What is the VPPA?
The VPPA is a federal consumer privacy statute that prohibits a video tape service provider from knowingly disclosing a consumer’s personal identifiable information (“PII”) derived from their rental, purchase of, or subscription to goods and services from a video tape service provider. The statute was enacted in 1988 after then-Supreme Court nominee Robert Bork’s video rental history was published in a newspaper article without his consent. Congress responded to the incident with the VPPA, a statute that prohibits these kinds of disclosures.
In recent years, the statute has gained new relevance beyond physical video tape rentals. Plaintiffs are now bringing lawsuits under the VPPA, particularly asserting claims related to the use of third-party pixel tracking tools on websites that offer video content. The Meta Pixel is a prominent example of this kind of tracking tool. The tool is used by companies for targeted advertising and can transmit certain information about a user’s interaction with a video on a website.
To state a claim under the VPPA, a plaintiff much show that: (1) a “video tape service provider”; (2) knowingly disclosed; (3) “personal identifiable information”; (4) of a “consumer.” 18 U.S.C. § 2710. The statute provides for some circumstances where PII may be disclosed without a VPPA violation, including disclosure to the consumer, disclosure with the consumer’s consent, and disclosure to law enforcement and other third parties in certain limited circumstances. The VPPA provides a federal right of action and civil liability for violations, including actual and punitive damages; legal costs and reasonable attorneys’ fees; and equitable relief.
Key Areas of Litigation in 2024 VPPA Cases
Some of the most litigated elements of the VPPA are: (1) the definition of a “video tape service provider,” (2) the definition of “personally identifiable information” (“PII”), and (3) the definition of “consumer.” Below we examine arguments advanced on each of these elements and trends in 2024 litigation on these issues.
1. Definition of “video tape service provider”
The VPPA provides that a person or entity is a “video tape service provider” if the person or entity is “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” or the person or entity received a consumer’s PII from a video tape service provider. Plaintiffs must show that a company provides prerecorded video content and that this content is central to their business model; without proving these elements, companies can successfully dismiss a case on the grounds that their business does not qualify as a “video tape service provider” under the VPPA.
Courts in 2024 followed this recent trend of finding that a business qualifies as a “video tape service provider” when the delivery of prerecorded video content is central to the company’s business. An Ohio district court held that defendant local newspapers were “video tape service providers” under the VPPA as they were engaged in the business of “delivery” of “audio visual materials.” Collins v. Toledo Blade, 720 F. Supp. 3d 543 (N.D. Ohio 2024). The court rejected the defendants’ argument that video content was only a “small minority” of their content and videos were “largely below-the-fold and embedded in news articles.” Id. at 553. Instead, the court held that the VPPA does not distinguish “peripheral or passive” delivery of video content, but only requires that defendants do engage in the delivery of video content. Id. In contrast, a court in California held that plaintiffs failed to show that defendant movie theater fell under the definition of “video tape service provider” because movie theaters do not deliver or rent audio visual materials and the mere display of movie trailers on defendants’ website were not enough to rise to the level that defendant was “in the business” of delivering video content. Walsh v. California Cinema Invs. LLC, No. 2:23-CV-09608-ODW (AJRX), 2024 WL 3593569, at *3-6 (C.D. Cal. July 29, 2024).
Some cases in 2024 also considered how businesses that offer online games fit into the definition of “video tape service providers.” In a Southern District of New York case the court found that a plaintiff sufficiently alleged that a chain of video game stores was a “video tape service provider” because the plaintiff specifically showed that many of the games it sold included short, prerecorded videos called “cut scenes” that a user views in the context of an interactive video game. Aldana v. GameStop, Inc., No. 22-CV-7063-LTS, at 6 (S.D.N.Y. Feb. 21, 2024). That court held that the “cut scenes” were “clearly” video content covered by the VPPA. On the other hand, another court held that a plaintiff failed to plead sufficient facts to allege that a defendant casino was a video tape service provider under the VPPA because plaintiff failed to show that defendant’s online casino games were sufficiently akin to video tapes for the statute to cover the casino. Mendoza v. Caesars Ent., Inc., No. 23-CV-03591, 2024 WL 2316544 (D.N.J. May 22, 2024). Thus, the issue of whether the delivery of online games can qualify a business as a “video tape service provider” will often turn on a fact-specific analysis of how these games are akin to prerecorded video tapes.
2. Definition of “personally identifiable information”
The VPPA defines “personally identifiable information” as “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” The First, Third, and Ninth Circuits have decided cases that define the scope of what counts as “personally identifiable information.” The general trend among courts is to find that PII under the VPPA must be in a form that “readily permit[s] an ordinary person to identify a specific individual’s video-watching behavior.” See In re Nickelodeon Consumer Priv. Litig., 827 F.3d 262, 290 (3d Cir. 2016); Eichenberger v. ESPN, Inc., 876 F.3d 979, 986 (9th Cir. 2017).
Lower court decisions in 2024 that weigh in on the definition of PII were often related to alleged violations of the VPPA based on the use of pixelsCourts have allowed the general theory that the operation of pixels can result in disclosure of plaintiff’s PII to get past the motion to dismiss stage, and that trend has continued in 2024. For example, in Collins v. Pearson Education, the court stated that disclosure of a Facebook ID “would readily permit an ordinary person to identify a specific individual’s video-watching behavior,” citing the language in other Southern District of New York cases that have held similarly in recent years, and thus constitutes PII. 721 F. Supp. 3d 274, 287 (S.D.N.Y. 2024). The court held that even under the narrower, more demanding approach of the Third and Ninth Circuits, the Southern District of New York has “uniformly held” this way and thus, the defendant’s argument that this information was not PII was “foreclosed by precedent.” Id.
Some courts have required a slightly more demanding standard to find that the use of pixel tools results in disclosure of a plaintiff’s PII. In Heerde v. Learfield Commc'ns, LLC, the court held that a person’s Facebook ID could be used to identify that person—and thus, would constitute PII—if the person’s profile is “publicly accessible and includes sufficient identifying information” such as name, gender, birthday, career, etc. 741 F. Supp. 3d 849, 857 (C.D. Cal. 2024). However, because plaintiffs in this case failed to “identify what information on their Facebook pages… was viewable and could be used to identify them,” the court dismissed the VPPA claim. The court’s opinion did state that “most courts have found the Pixel discloses PII at the pleading stage, at least where plaintiffs also allege personal information existed on their Facebook page that could be used to readily identify them.” Id. at 857.
3. Definition of “consumer”
The third regularly litigated definition at the motion to dismiss stage is the definition of “consumer” under the VPPA. Under the statute, the term “consumer” means any “renter, purchaser, or subscriber of goods and services from a video tape service provider.” At the motion to dismiss stage, the specific relevant question is often whether the plaintiff is a “subscriber,” as in most recently litigated cases, the plaintiff is not renting or buying video content. 2024 saw many cases that grappled with the question of whether newsletter subscriptions make plaintiffs subscribers to a defendant’s video content, and how closely related subscriptions and access to video content must be to make the plaintiff a “subscriber” under the definition of consumer in the VPPA.
Most courts require some kind of connection between the subscription and the video content for a plaintiff to qualify as a “subscriber” (and thus a “consumer”) under the VPPA. In Sutton v. TED Found., Inc., No. 23 CIV. 9219 (DEH), 2024 WL 4167342 (S.D.N.Y. Sept. 12, 2024), the court held that three plaintiffs who registered, committed, and expressed association with a nonprofit’s mobile application, and provided names and email addresses as part of registration, were not “subscribers” under the law. The court examined factors developed in a 2015 Eleventh Circuit case to decide whether the plaintiffs would qualify as subscribers, including payment, registration, commitment, delivery, expressed association, and access to restricted content. Here, the fact that the plaintiffs were free to watch or not watch videos on the website without any obligation to the company weighed against the plaintiff’s argument that they were subscribers. Additionally, plaintiffs failed to show that their accounts were “a subscription for or to the delivery of video content,” another factor the court held weighed against them. Finally, the fact that plaintiffs did not have to log in to watch videos and that their accounts did not afford any special access to certain content were factors weighing against defining plaintiffs as subscribers. The court did, however, grant plaintiffs leave to amend because it determined that it was at least possible that amendment could fortify Plaintiffs’ claim that they were subscribers as defined by the VPPA.
Similarly, in Brown v. Learfield Commc'ns, LLC, 713 F. Supp. 3d 355 (W.D. Tex. 2024), the court required a close connection between the subscription and the access to video content and found that plaintiffs failed to meet this requirement. The court held that because there was no allegation that a user must log in to watch the video and because the video content plaintiff accessed was not exclusive to a subscribership, the plaintiffs were subscribers to newsletters, but not subscribers to audio visual materials, and did not fall under the VPPA definition of consumer. As this court stated, there is “a great deal of inconsistency throughout the federal courts” that “poses consequences to personal privacy in the era of rapid accumulation of data by tech companies.” Id. at 367. The Court emphasized that due to the shifting landscape, its opinion should not be construed to mean that all newsletters are exempt from the VPPA.
Likewise, in Pileggi v. Wash. Newspaper Publ’g Co., Civil Action 23-345 (BAH), at *14 (D.D.C. Jan. 29, 2024), the court held that plaintiff was not a subscriber to audio visual content when the goods or services the plaintiff received as a result of a newsletter subscription were “entirely independent of the audio-visual content that she consumed” on the defendant newspaper’s website. The fact that plaintiff never clicked on links to video content in the newsletter nor watched any of the videos in the newsletter were facts in favor of finding that she did not qualify as a subscriber. Additionally, plaintiff failed to allege that her “status” as a newsletter subscriber was a condition to accessing defendant’s video content.
However, a recent Second Circuit case significantly expanded the definition of “subscriber.” In Salazar v. Nat'l Basketball Ass'n, the district court held that a plaintiff who subscribed to NBA.com newsletters was not a “subscriber” under the VPPA because the subscription was not required to watch videos on the website and was not the mechanism that allowed the plaintiff to watch the videos on the website. The court further held that the phrase “goods or services” within the VPPA’s definition of “consumer” is limited to audiovisual goods or services, and that a newsletter does not fall under this definition. 685 F. Supp. 3d 232, 245 (S.D.N.Y. 2023), vacated and remanded, 118 F.4th 533 (2d Cir. 2024). The Second Circuit reversed, holding that the text of the VPPA does not limit “subscriber of goods and services” to subscriber of only “audiovisual” goods and services, and that by trading personal information like his email and IP addresses in exchange for receiving the online newsletter, plaintiff became a subscriber of that newsletter and qualified as a subscriber under the VPPA.
Given the many cases that consider the “subscriber” definition issue, and the range in approaches courts have taken, this area of VPPA litigation will remain a space to watch for developments in the coming months.
