https://www.mondaq.com/unitedstates/class-actions/1274274/back-to-the-future... Perhaps you are old enough to recall when consumers used to have to go to video stores like Blockbuster Video to rent a movie. And perhaps you recall the excitement of scoring a copy of the always limited "new release." It was during these "archaic" times that Congress passed the federal Video Privacy Protection Act (VPPA) in response to a newspaper publishing Robert Bork's video rental history during his U.S. Supreme Court nomination. Fast forward to today, and you might be surprised to learn that some consumers are now using the VPPA, a 1988 law designed to prevent the "wrongful disclosure" of video tape sale and rental records, as fuel for a new wave of class action lawsuits against companies that offer video content on their websites. Plaintiffs in these new lawsuits seek to stretch the VPPA beyond just the VHS and Betamax tapes it was originally intended for, and apply the law to any videos on websites that are embedded with the code for Google Analytics and/or Meta Platforms Inc.'s Pixel tracking tool.1 In short, the lawsuits allege that companies using these tracking tools violate the VPPA because their websites track the videos that visitors watch and share this viewing data with third parties, namely, Google and Facebook. The Video Privacy Protection Act The VPPA prohibits a "video tape service provider" from "knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider." 18 U.S.C. § 2710(b)(1). Under the Act, "personally identifiable information" is "information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider." 18 U.S.C. § 2710(a)(3). A "video tape service provider" is "any person, engaged in business, 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). Courts construe "similar audio-visual materials" broadly, generally concluding that its definition encompasses streaming video delivered electronically. See, e.g., In re Hulu Priv. Litig., No. C 11-03764 LB, 2012 WL 3282960, at *5-6 (N.D. Cal. Aug. 10, 2012). A 2013 amendment to the VPPA permits the disclosure of personally identifiable information if the consumer provides "informed, written consent (including through an electronic means using the internet)." 18 U.S.C. § 2710(b)(2)(B). This consent must be obtained "in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer." Id. The consumer must also be given the opportunity to withdraw from the ongoing disclosures. Id. Recent Rulings on Defendants' Motions to Dismiss Defendants targeted by this VPPA class action wave have been filing motions to dismiss. These motions typically assert the following four arguments in favor of dismissal: The plaintiff cannot show that defendant is a "video tape service provider" under the Act; The plaintiff failed to plausibly allege that the defendant's disclosures included personally identifiable information; The plaintiff failed to plausibly allege that the defendant "disclosed" personally identifiable information; and The plaintiff failed to plausibly allege that the defendant "knowingly" disclosed personally identifiable information. In the past year, courts considering these arguments have reached split decisions. Courts denying motions to dismiss have held that the plaintiffs plausibly alleged that defendants-such as the Epoch Times, WebMD and Boston Globe Media Partners-qualified as video tape service providers under the Act and knowingly disclosed to third parties personally identifiable information about visitors consuming the videos on their websites.2 However, at least one court granting a motion to dismiss agreed that the plaintiff had failed to plausibly allege that the information the defendant company disclosed to third parties was personally identifiable information. In Wilson v. Triller, Inc., the district court concluded the plaintiff failed to allege that the transferred information constituted personally identifiable information because the complaint did not set forth any facts capable of establishing that Facebook could link the transferred information to an individual user. Two other courts granting motions to dismiss VPPA claims agreed that the plaintiff had failed to plausibly allege that the defendant company was a video tape service provider. In Stark v. Patreon, Inc., the District Court for the Northern District of California concluded that live broadcasts do not fall within the definition of "similar audio-visual materials" and dismissed the plaintiff's VPPA claim because the plaintiffs did not specify whether the video content they consumed on Patreon-a subscription-based platform that hosts a variety of content posted by individual content creators-was broadcast live or prerecorded. 2022 WL 7652166, at *6 (N.D. Cal. Oct. 13, 2022). In Louth v. NFL Enterprises LCC, the U.S. District Court for the District of Rhode Island reached the same conclusion, holding that "NFL Enterprises' Motion to Dismiss the plaintiff's VPPA claims is granted to the extent they rely upon the consumption of live content . . . ." 2022 WL 4130866, at *4 (D.R.I. Sept. 12, 2022). Significant Risks Posed by the Lawsuits The VPPA class action wave threatens to subject businesses to substantial damage awards. Any person injured by conduct violating the Act can bring suit and seek actual damages not less than liquidated damages in the amount of $2,500, punitive damages, and reasonable attorneys' fees and other litigation costs. 18 U.S.C. § 2710(c). Given that plaintiffs are alleging that companies are violating the VPPA every time a user watches a video on their website, the class of plaintiffs in a given action could conceivably consist of thousands of consumers. A company hit with a class action lawsuit alleging VPPA violations should seek legal counsel to consider what defenses are available to it. The case law in this area is still developing, and the facts specific to each defendant-that is, what kind of business they do, what content their website provides, and what identifying information the plaintiff alleges they convey to a third party-offer distinct opportunities for formulating defenses to an alleged VPPA violation. Legal counsel could also be useful to companies seeking to implement proactive measures to protect them from exposure to a VPPA class action lawsuit. For More Information If you have any questions about this Alert, please contact J. Colin Knisely, Michael S. Zullo, Courtney L. Baird, any of theattorneysin our Trial Practice Groupor the attorney in the firm with whom you are regularly in contact. Footnotes 1 Meta Platforms, Inc., formerly named Facebook, Inc., owns Facebook, Instagram, and other related products and services. 2 Czarnionka v. Epoch Times Ass'n, Inc., 2022 WL 17069810 (S.D.N.Y. Nov. 17, 2022); Lebakken v. WebMD, LLC, 2022 WL 16716151 (N.D. Ga. Nov. 4, 2022); Ambrose v. Boston Globe Media Partners LLC, 2022 WL 4329373 (D. Mass. Sept. 19, 2022).