Sites, PII, And Videotape: Litigation Trends Under The Federal Video Privacy Protection Act

• Jurisdiction: United States,Federal
• Law Firm: Squire Patton Boggs LLP
• Subject Matter: Consumer Protection, Litigation, Mediation & Arbitration, Media, Telecoms, IT, Entertainment, Privacy, Privacy Protection, Class Actions, Advertising, Marketing & Branding, Dodd-Frank, Consumer Protection Act
• Author: Ms Kristin L. Bryan, James M. Brennan and Anna Huttner
• Published date: 24 April 2023

The Video Privacy Protection Act ("VPPA"), 18 U.S.C. ' 2710, is a federal statute that was enacted in 1988 in response to the disclosure and publication of then-Supreme Court nominee Robert Bork's video rental history without his consent. To prevent repeats of the Bork incident, the VPPA generally prohibits any "video tape service provider" from disclosing a consumer's viewing habits without a consumer's written consent.

Despite its analogue origins, this decades-old statute has been recently targeted by the plaintiff's bar (incentivized by the VPPA's $2,500 per violation liquidated damages provision) in putative class action litigation brought against website operators. At least under the broad interpretation of the VPPA urged by plaintiffs, any business that has a website with video capabilities could potentially be considered a "video tape service provider" under the VPPA. In the view of the plaintiff's bar, besides video streaming platforms and other entertainment companies, this also includes media companies, restaurant chains, professional sports organizations and a variety of e-commerce businesses.

At first blush these recent claims bear some similarities to a spate of VPPA cases filed ten years ago. In these earlier cases, as is the case here, plaintiffs claim that defendants violated the VPPA by sharing information about visitors' video viewing habits and history with third parties. However, the underlying circumstances involved in this newest wave of VPPA cases contain some notable differences from prior litigation trends. These newly filed cases also raise novel issues involving how key language used in the VPPA should be interpreted and whether Congress intended this statute's private right of action apply to technologies that were nonexistent when the VPPA was enacted.

At least 70 VPPA actions have reportedly been filed in the past year alone against the operators of websites that offer online videos and use ubiquitous third-party analytics tools like tracking pixels, with more continuing to be filed. The success of website operators in securing dismissal of VPPA claims has been a mixed bag thus far, with some courts expressing reluctance at dismissing these cases early on without discovery.

These lawsuits are a continuation of a growing trend of consumer privacy class action litigation being filed in courts across the U.S. and entail a significant risk to a wide variety of companies across industries. Here, we give an overview of some of the issues being litigated in the current VPPA cases.

VPPA Background

The VPPA prohibits [1] a "video tape service provider" from [2] knowingly [3] disclosing [4] "personally identifiable information" of [5] a "consumer," unless certain enumerated exceptions apply. 18 U.S.C. ' 2710(b)(1). The most prominent exceptions are the exceptions for disclosures "incident to the ordinary course of business of the video tape service provider," ' 2710(b)(2)(E), and where the consumer provides "informed, written consent," ' 2710(b)(2)(B). For the consent exception, the written consent must be obtained "in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer." ' 2710(b)(2)(B)(i).

Aggrieved plaintiffs under VPPA have a private right of action in federal...