7th Circuit Holds Broad View of VPPA, Unlike Other Courts Recently

The VPPA “does not say ‘subscriber of … video services’; it says ‘subscriber of … services from a video tape service provider,’” said Judge Frank Easterbrook, on behalf of the three circuit judges. “The complaint adequately alleges that MeTV is a video tape service provider. What more is required?”

“If plaintiffs had signed up and never watched a video, but had purchased a Flintstones sweatshirt or a Scooby Doo coffee mug or a Superman action figure or a Bugs Bunny puzzle (MeTV’s web site offers all four), then they would have purchased ‘goods’ from a ‘video tape service provider,’” Easterbrook said. “Nothing in the Act says that the goods or services must be video tapes or streams.”

In case 22-05963, plaintiffs David Vance Gardner and Gary Merchant signed up for MeTV by inputting their emails and zip codes and watch programming on their browsers. Gardner and Merchant allege that they did not consent to their information from that site being shared to Facebook via the Meta Pixel, and that the transmission violates the VPPA. The 7th Circuit’s decision reversed the judgement of the U.S. District Court for Northern Illinois, where the original case was heard, and remanded it for proceedings consistent with their opinion, Friday’s decision said.

The 7th Circuit, like the 2nd Circuit "a few months ago, opted for a more expansive reading of who should be considered a 'consumer' under the VPPA," said Ian Ross, partner at Sidley Austin. "This continues to be a heavily-litigated issue at the district court level, and a number of district courts in other parts of the country have been less receptive to the argument that a website visitor, who does nothing more than subscribe to a free online newsletter, has statutory standing to bring a VPPA claim."

“Our case is almost identical to Salazar,” the decision said, referencing case 23-1147 where the NBA asked the U.S. Supreme Court to review a decision from the 2nd U.S. Court of Appeals that the league said unfairly expanded the act's scope (see 2503190047).

But other courts, such as the U.S. Court of Appeals for the D.C. Circuit, in a recent oral argument for case 23-00345, seemed to take a narrower view of definitions in the VPPA (see 2502280051). The 9th U.S. Circuit Court of Appeals also took a narrow view of what it means to be a videotape service provider under VPPA in case 23-3832 about a cinema sharing a customer's information with Facebook (see 2503270053).

Privacy lawyers predict the recent wave of litigation under the VPPA will continue (see 2501100009).