VPPA Case Volume to Keep Growing, Privacy Lawyers Predict

“In the last probably two years, there was a pretty significant wave of cases filed simply against the use of videos and websites in connection, typically with...website advertising technology,” he said. “The reason it became a trend is because there are statutory damages available to a person aggrieved by a violation of the act” of up to $2,500 per person.

The VPPA includes "'consumer' as a defined term, and it's pretty narrow compared to what we all think of ... traditionally as a consumer," said Ian Ross, partner at Sidley Austin. In addition, "it has a very specific definition of the types of businesses that are covered under it that you have to be a videotape service provider.”

Courts in the past have ruled that if a person subscribed to a physical newspaper or something similar from a company, and subsequently visited the company's website and accessed videos, the VPPA didn't apply because the videos were separate from the physical-product subscription, Wolfe said. The 2nd Circuit's October ruling in Salazar v. NBA broadened that definition, agreeing with the plaintiff who alleged that after he registered for a free newsletter from the NBA, the league violated the VPPA by disclosing without his permission personal information about him and the videos he watched on the website.

In Salazar, Wolfe said, the 2nd Circuit ruled that "the plaintiff was a subscriber because he had signed up to newsletters, and even though the newsletter subscription didn't give him special access to the videos, they said, ‘Yeah, he's still a subscriber.’”

David Krueger, a privacy litigator at Benesch, acknowledged the 2nd Circuit expanded the VPPA's scope, which will influence future litigation. “The 2nd Circuit held that if a person subscribes to something that's not prerecorded or similar audiovisual material, that they could still have a claim against the entity,” he said. “Even though the plaintiff didn't pay for the newsletter, the 2nd Circuit said ... by signing up for the newsletter, he gave the company information ... [such as] his email address and his IP address, and that's enough to essentially constitute an exchange.”

Salazar is the first time a circuit court took this broader view, according to Ross. Because of that, he said, a rise in filings trying to use that same theory is expected. “If you're a plaintiff's attorney that likes to bring these cases, you're going to argue that that should still be persuasive to any court in the country,” he said. “The defense view … has been, there's a specific set of facts there that led to that conclusion [and] that they don't apply in a lot of these other VPPA cases.”

Krueger also said that given this ruling, there will be plaintiffs who try to expand it to other courts in different areas of the country, urging them to follow the 2nd Circuit. But other courts could alternatively push back or limit the scope in some way, he added.

For Krueger, the 2nd Circuit decision "is very wrong and dangerous because … every website operator has an access log that has the IP addresses of every website visitor. So, if a website visitor merely providing their IP address to the website operator is in consideration, then pretty much anybody who has videos on their website with any type of ... alleged tracking pixel, is going to be subject to the VPPA.”

Some plaintiffs are considering even more inventive angles for cases potentially falling under the VPPA; for example, by roping in videogames that contain cut scenes, said Krueger: Some plaintiffs have argued “that those cut scenes constitute prerecorded video materials, subjecting video games [to] the VPPA.” An example of this is Aldana v. GameStop at the U.S. District Court of Southern New York. In that case, the plaintiff purchased a videogame from GameStop that contained a cut scene, which is a prerecorded videoclip that advances the videogame's story. GameStop then uploaded the plaintiff's personally identifiable information to Facebook using the Facebook Tracking Pixel. In deciding that or any similar cases, courts will have to define what constitutes "similar audiovisual materials," like a videogame cut scene, Krueger said.

The district court refused to dismiss the Aldana case in February. However, GameStop and the plaintiffs filed a joint stipulation of dismissal on Monday (see 2501070071).

“I think you'll see different attorneys continuing to try to test where the lines are being drawn around this statute,” said Ross. “You have a statute that was directed at rental viewer histories, and no one knows exactly what that means when you're applying it to the internet, or ... mobile applications that might have cut scenes, that might have third-party embeds that aren't really theirs.”

Despite the Salazar decision being precedent only in the 2nd Circuit Court jurisdiction for now, it's a good idea for businesses to prepare for protecting themselves from these class-action lawsuits, Krueger said. “Even if the scope of sales never expands beyond where it currently is, it's still going to present a compliance issue with businesses doing advertising.”