Video Privacy Protection Act

In recent years, there has been a flurry of litigation under the Video Privacy Protection Act (VPPA). Although the law was enacted before the internet was widely accessible, plaintiffs are now aggressively using it against companies with websites with video content—regardless of whether videos are a primary feature of the site. HSG has significant experience defending claims under the VPPA, and has secured dismissal of putative class action lawsuits brought under the statute against IBM and a publicly traded online media company.

Below is additional background on the VPPA and HSG’s experience.

What is the Video Privacy Protection Act (VPPA)?

Originally inspired by the public disclosure of a Supreme Court nominee’s video rental history, the VPPA was designed to protect the confidentiality of consumers renting or purchasing video material. Under the 1988 federal statute, a “video tape service provider” that knowingly discloses “personally identifiable information” about a “consumer” may be liable to the consumer for damages.

Despite being written in the brick-and-mortar era, the VPPA has become a source of considerable litigation today. In a wave of cases, plaintiffs have claimed that websites violate the VPPA when they share data concerning video viewing with third-parties like Facebook and Google to facilitate targeted advertising.

HSG’s VPPA experience

HSG has successfully represented defendants in several VPPA matters. For example, our experience includes:

• Representing a publicly traded online media company in two separate putative class actions under the VPPA. After HSG filed a motion to dismiss in one of the cases, the plaintiff voluntarily withdrew its case.
• Obtaining summary judgement and successfully prosecuting a motion for sanctions after discovering that one of the plaintiffs had altered evidence.
• Representing IBM in a putative class action under the VPPA involving the Weather Channel’s website.

What do the VPPA’s key terms mean?

To understand how the VPPA applies to our online world, it’s important to understand the meaning of the following three terms, each of which has been the subject of litigation.

• Video tape service provider: The VPPA defines this term as referring to “any person, engaged in the business . . . of rental, sale, or delivery of prerecorded video cassette tapes or similar audio-visual materials.” Courts have read “similar audio-visual materials” to include video content distributed through websites, apps, or streaming services. Many businesses that host videos online may thus be considered “video tape service providers.”

Defendants in VPPA litigation have ranged from traditional video platforms like Hulu to professional sports leagues, newspaper publishers, and providers of educational materials such as WebMD.

• Consumers: This term is defined as “any renter, purchaser, or subscriber of goods or services from a videotape service provider.” Even non-paying users, such as subscribers to free newsletters, have qualified as “consumers” in some cases.
• Personally identifiable information: This generally refers to information that identifies a person as having requested specific video materials. The federal courts, however, have not settled on a uniform test to determine whether certain information identifies a person.

What risks does VPPA litigation present?

The VPPA carries potentially serious consequences, including statutory damages; actual damages; punitive damages; and attorney’s fees and costs. Many companies have faced class action lawsuits seeking liquidated damages of $2,500 per violation, which can translate to a very large number for websites attracting millions of users.