The decades-old Video Privacy Protection Act , 18 U.S.C. § 2710 etseq. (VPPA), is at the heart of an emerging trend in privacy litigation aimed at media companies that own or operate websites with video content. Recent consumer class action complaints asserting VPPA claims have focused on the use or integration of the Meta/Facebook "pixel" on websites that provide video content.Plaintiffs generally allege that the operation of the "pixel" wrongfully discloses to Meta/Facebook the title of the videos watched by website visitors.As plaintiffs allege, if a website visitor has a Facebook account and has recently visited Facebook, the "pixel," combined with cookies placed on the visitor's browser by Facebook, discloses information to Meta/Facebook that allows Meta/Facebook, and any "ordinary person," to link the titles of viewed videos to information sufficient to identify the viewer.This, VPPA plaintiffs say, runs afoul of federal law and makes defendants liable for millions of dollars in damages to consumers.

The VPPA was passed by Congress in 1988 after Supreme Court nominee Robert Bork's video rental history was published during his confirmation process. The statute exposes "video tape service providers" to potential liability for actual damages (but not less than $2500 in liquidated damages), punitive damages, and attorneys' fees for the wrongful disclosure of information that identifies a person as having requested or obtained specific video materials or services from the provider.Although the VPPA was enacted when most people predominantly viewed video content through the now-dated VHS or Betamax tape rentals, the statute has had a second act of sorts as plaintiffs have sought to apply this law to an age where streaming video content is much more common than viewing analog tape.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. . . ." 18 U.S.C. § 2710(a)(4).Some courts have held that this definition may include companies that provide access to online streaming services or that host video content on websites they own or operate.See, e.g., In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262 (3d Cir. 2016) (VPPA applied to company that operated website geared to children that offered streaming videos and interactive games).

Importantly, the VPPA protects only "consumers," defined as "any renter, purchaser, or subscriber of goods or services from a video tape service provider."Courts are split on what qualifies as a "subscriber" in the context of free apps that allow for the viewing of media content.In 2016, the First Circuit held that a plaintiff who downloaded the free USA Today app on his device was a subscriber for purposes of the VPPA when he provided his personal information in exchange for access to the video content.In contrast, the Eleventh Circuit held in 2015 that a plaintiff who had downloaded and used the Cartoon Network's free app to watch video clips was not a subscriber under the VPPA.And in 2017, the Eleventh Circuit held that a plaintiff who used CNN's mobile app, on which he could access special video content because of his cable subscription, did not qualify as a subscriber for purposes of the VPPA.In this second act, courts may take divergent views regarding the type of relationship or interaction a VPPA plaintiff must show to qualify as a "subscriber" in the context of media company websites that host digital video content.

In light of this trend, companies that own or operate websites with video content should evaluate their current settings and practices, focusing in particular on what information they may share with advertising or other partners regarding website visitors.

Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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