This blog has been cross-posted on the Consumer Class Defense site.
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
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.
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.
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.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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