VPPA Claims: Could Your Site Be Next?

by: Justine Young Gottshall and Chloé Nelson

Litigation under the Video Privacy Protection Act (“VPPA”) has been heating up, and to date, the widest variety of defendants in VPPA history have been ushered into the courts. Gone are the days where the Blockbusters, Netflix, and Hulus of the world were the only types of companies defending against VPPA class actions. Today, online news outlets, professional sports organizations, and e-commerce companies are just a handful of the new types of companies facing VPPA liability. What do all these unsuspecting companies have in common? Their use of a tiny piece of invisible code used for website monitoring and targeted advertising: tracking pixels.

This new wave of litigation centers around the argument that the website publisher’s use of tracking pixels on webpages containing video content violates the VPPA. Therefore, companies should take a deeper dive into their use of tracking technologies and be mindful of the fact that the VPPA may apply to a wide variety of companies across many different industries, not just video streaming providers.

Expanding the VPPA Umbrella: New Theories, New Defendants

The VPPA was passed to protect the privacy of an individual’s personal information in relation to their video-viewing habits. It prohibits “video tape services providers” from knowingly disclosing the “personally identifiable information” (“PII”) of a consumer without the consumer’s consent. PII is information identifying a person as having requested or obtained specific video materials from a “video tape service provider,” which, in turn, is any person engaged in the business of “delivery of prerecorded video cassette tapes or other similar audio visual materials.” Violations of the VPPA can burn—plaintiffs can seek $2,500 in statutory fees per violation, as well as punitive damages and attorneys’ fees.

At the time of the VPPA’s passage, videos existed in one predominant format—prerecorded video cassette tapes. “Video tape services providers” were stores like Blockbuster, which rented or sold those tapes. With the rise of computers and the Internet came a shift in videos from physical to digital format and the ability of many more types of companies to provide videos to consumers. In the mid-2010s, a new wave of litigation targeted video streaming providers, such as Hulu and Netflix, as defendants. In these cases, the courts addressed the definitions of PII and “subscriber” as their original meanings became hazy with changes in how information is shared over the Internet and the rise in website and app subscriptions and accounts.

The tide of VPPA litigation is once again on the rise. And if you use tracking pixels, you may very well get swept in. Today, VPPA cases assert the new theory that a defendant violates the VPPA by using a tracking pixel on its website, which causes the unauthorized disclosure of a consumer’s PII. These complaints typically allege that when plaintiff, a subscriber to, or account holder on defendant’s website, views a video, the pixel tracking technology installed by defendant causes the web browser to share the title of the videos viewed. The tracking pixel then links those videos with the plaintiff’s other identifying information, thus resulting in a knowing disclosure of the plaintiff’s PII (as defined by VPPA).

Because these allegations can apply to any website using tracking pixels, this new wave of VPPA litigation has swept in many new types of defendants. Well over 100 cases asserting tracking pixel-related claims under the VPPA have been filed in the last few years. For instance, in Louth v. NFL Enterprises, LLC, 2022 WL 4130866 (D.R.I. Sept. 12, 2022); Carroll v. La-Z Boy, Inc., 2023 WL 2699984 (N.D. Cal. Mar. 23, 2023); In re Hulu Privacy Litigation, 2014 WL 1724344 (N.D. Cal. Apr. 28, 2014); Bernardino v. Barnes & Noble Booksellers, Inc., 2017 WL 3727230 (Aug. 11, 2017); and Czarnionka v. Epoch Times Ass’n., Inc., 2022 WL 17069810 (S.D.N.Y. Nov. 17, 2022), plaintiffs allege that these entities disclosed to Google, Meta, and other creators of technologies that monitor website traffic, PII in violation of the VPPA. It is almost certain that more lawsuits such as these will be filed over the coming weeks and months.

Don’t Get Burned: Advice for Businesses to Avoid VPPA Liability

Website owners should do the following to avoid becoming the target of a VPPA class action for its use of tracking pixels:

  • Review your company’s use of tracking pixels, particularly on any page and within any content that contains videos or titles of any entertainment content;

  • Ensure that no VPPA PII is shared through any pixels; and

  • Where possible, avoid using any tracking pixels on webpages with videos or similar content.

Originally published by InfoLawGroup LLP. If you would like to receive regular emails from us, in which we share updates and our take on current legal news, please subscribe to InfoLawGroup’s Insights HERE.

Justine Young Gottshall and Chloé NelsonVPPA, litigation, Privacy Law