Another Outdated Statute Fuels a Wave of Class Action Litigation

As detailed in prior articles, enterprising consumer law attorneys have repurposed wiretap laws that have been on the books for decades to launch a wave of class action lawsuits against companies for using technologies that never existed at the time those laws were enacted; namely technology that that captures website browsing data for analysis, such as website session replay software, chatbots, and website traffic analysis and tracking tools. In a similar manner, some of those same attorneys have sought to capitalize on yet another antiquated statute, twisting its original intent to encompass new technologies and practices that were nonexistent when the statute was enacted. That statute is the Video Privacy Protection Act.

What is the Video Privacy Protection Act?

The Video Privacy Protection Act (VPPA) was enacted in 1988 in response to a high-profile privacy breach involving Supreme Court nominee Robert Bork. During his nomination process, a journalist obtained and published Bork’s video rental history,exposing a gap in U.S. privacy protections and sparking public outcry.

In the wake of the scandal, the VPPA was enacted by Congress to prevent the unauthorized disclosure of individuals’ video rental or purchase records by making it unlawful for “video tape service providers” to knowingly disclose personally identifiable information (PII) about consumers, except under certain circumstances such as with consent or a court order. The law defined “consumers” as any renter, purchaser, or subscriber of goods or services from a video tape service provider and imposed statutory damages of up to $2,500 per violation.

Evolution and Digital Expansion

While the VPPA was originally focused on physical video rentals (Blockbuster-style VHS tapes and DVDs) its language has proven broad enough to encompass modern digital video services. As streaming platforms and online video content became ubiquitous, courts and litigants began applying the VPPA to digital services, including platforms like Netflix, Hulu, and even websites that merely host video content. A 2013 amendment to the law clarified that electronic consent was valid and could be granted for up to two years, further paving the way for its application to online services.

Repurposing for Class Action Litigation

In recent years, the VPPA has seen a dramatic resurgence as a trigger for class action lawsuits targeting website operators that use tracking technologies such as Meta’s Pixel tool. These pixels can collect and share users’ video viewing histories and other personal data with third parties, often without explicit user consent. The attorneys behind these lawsuits argue that this sharing constitutes a violation of the VPPA.

Hundreds of them complaints been filed annually over the past few years, targeting a wide array of businesses; not just traditional video providers, but also news sites, sports organizations, and other websites that display video content.

And, as with any statute that grants a private right of action together with significant statutory damages, the financial stakes are high: VPPA claims can yield massive settlements, especially when pursued on a class-wide basis. Some companies have settled Video Privacy Protection Act class actions for millions of dollars, highlighting the law’s potency in the modern era.

Key Court Decisions and Legal Debates

Recent litigation has centered on two main issues: (1) who qualifies as a “consumer” under the VPPA; and (2) whether the use of tracking pixels or similar technologies constitute a prohibited disclosure.

Two prominent and conflicting appellate court decisions exemplify the current legal uncertainty:

In the 2024 case of Salazar v. NBA, the Second Circuit Court of Appeals adopted a broad definition of “consumer,” under the VPPA, holding that the plaintiff fell within that category when he signed up for the NBA’s online newsletter he became a “subscriber of goods or services” and a VPPA “consumer,” despite the fact the newsletter contained no video content. This enabled him to file suit after the NBA disclosed his Facebook ID and video history to Meta without his consent. This broad interpretation of the VPPA opened the door for more plaintiffs to bring VPPA claims, increasing litigation risk for website operators.

Later in Salazar v. Paramount Global, the Sixth Circuit adopted a narrower reading of the VPPA in a case filed by the same plaintiff, holding that only subscribers to audiovisual goods or services (as opposed to newsletter subscribers) qualify as “consumers” under the VPPA. By issuing an opposing ruling to that of the Second Circuit, the Sixth Circuit limited the scope of potential plaintiffs, creating a circuit court split.

The circuit split between the Second and Sixth Circuits has created significant legal uncertainty. The NBA has petitioned the Supreme Court to resolve these differences, particularly regarding the definition of “consumer” and the nature of harm required to bring a VPPA claim.

Video Privacy Protection Act Implications for Website Operators

The ongoing wave of VPPA litigation, fueled by the use of tracking pixels and broad interpretations of the statute, means that any business hosting video content on its website could be at risk, even if video is not offered as a primary service of the site. Courts have sometimes allowed claims to proceed even when plaintiffs did not pay for a subscription or product, further expanding potential liability.

What Should Website Operators Do?

Born out of a forgotten 1980s privacy scandal, the VPPA has been repurposed in the digital era as yet another weapon in the consumer privacy class action arsenal. Its original purpose— to protect the confidentiality of video rental records— has evolved to encompass the complex realities of online data sharing.

With conflicting appellate decisions and the possibility of Supreme Court intervention, the future scope of the VPPA remains uncertain. For now, website operators should be vigilant about their data sharing practices, particularly when using tracking technologies that may implicate users’ video viewing histories.