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Feb 19, 2024
This blog has been cross-posted on the Consumer Class Defensesite. Anyone following trends in consumer class action litigation willknow that consumer privacy was a primary focus of theplaintiff's bar in 2023. And there are no signs this uptick inconsumer privacy claims is slowing any time soon. Although theclaims center around use of tracking technology or analyticsfunctions on consumer facing websites, several different statutesand claims have been asserted, including violations of statewiretap statutes and the Video Privacy Protection Act("VPPA"). Although these cases are largely at the motion to dismiss stage,and therefore there is little insight into how certain key defenseswill play out, some recent decisions surrounding VPPA claims haveshifted the landscape in certain defendant's favor. The VPPA provides that "a video tape service provider whoknowingly discloses, to any person, personally identifiableinformation concerning any consumer of such provider shall beliable to the aggrieved person." 18 U.S.C. 2701(b)(1). Thatis, a video tape service provider cannot knowingly disclose,without the consent of the consumer, his or her personal videoviewing information, to a third party. In these class actions,plaintiffs are alleging that if a website they visit to watch avideo has a tracking pixel embedded in its code, the visitor'svideo viewing information will be disclosed to the third partyassociated with that pixel without the visitor's consent. Ifthis activity is deemed a violation of the VPPA, the plaintiffstands to recover $2,500 per violation. In a class action where theclass members are visitors to a website, the exposure can be in thetens of millions, if not higher. There are, however, some limitations in the statute as to whocan sue and be sued, and recent case decisions have been helpful toclarify those limits, particularly in the context of who is avideo tape service provider and who is aconsumer. Definition of Video Tape Service Provider narrowed In Carrol v. General Mills, Inc., the plaintiff filed aputative class action against General Mills for violation of theVPPA. The plaintiff alleged he had purchased and eaten GeneralMills products in the past and had downloaded the General Millsmobile app. 2023 WL 6373868, *1 (C.D. Cal. Sept. 1, 2023). He thenused the mobile app to watch a video titled "Today'sExperiment, Carbonation Baking." Id. According to theplaintiff, because the General Mills app has pixel trackingtechnology installed and he watched the video while he wassimultaneously logged into the site, the pixel caused informationabout the video he watched to be disclosed to the site without hisconsent. Id. On the motion to dismiss, the court made afew key findings that resulted in the dismissal of theplaintiff's VPPA claim. First, the court analyzed thedefinition of Video Tape Service Provider ("VTSP"), whichis "any person engaged in the business, in or affectinginterstate or foreign commerce, of rental, sale, or delivery ofprerecorded video cassette tapes or similar audio visualmaterials." Id. at *3. The court found that based onthe allegations, General Mills could not be found to be"engaged in the business" of delivering selling orrenting audio visual material. Id. Specifically, the courtstated where the allegations "do no more than show that videosare part of General Mills' marketing and brand awareness"and do not indicate that the videos themselves are profitable,there is not enough to say that General Mills is a VTSP.Id. Second, the court considered whether the plaintiff qualified asa consumer for purposes of a VPPA claim. A consumer is defined as"any renter, purchaser, or subscriber of goods or servicesfrom a video tape service provider." 18 U.S.C. 2701(a)(1). Thecourt rejected the idea that the plaintiff could be a consumer byalleging that he had purchased and eaten General Mills products inthe past. Id. at *4. Rather, the court found that thegoods and services rented, purchased, or subscribed to must be theaudiovisual materials. Id.in other words, "acustomer's non-video transaction plays no part."Id. Thus, because the plaintiff failed to allege thatGeneral Mills was a VTSP or that he was a consumer, the courtgranted the motion to dismiss. Definition of Consumer narrowed Another defense-friendly development in the VPPA case lawrelates to the definition of subscriber. In many cases, plaintiffsallege that subscribing to a newsletter, app, or having an accountwith a defendant is enough to establish plaintiff is a consumerunder the VPPA. There have been a string of recent decisions acrossthe country interpreting subscriber to be much narrower. Inparticular courts have found that where the allegations cannot linkthe subscription to any kind of special access to video content theplaintiff is not a consumer within the meaning of the statute.Lamb v. Forbes Media LLC, 2023 WL 6318033, *13 (S.D.N.Y.Sept. 28, 2023); Brown v. Learfield Communications LLC,No. 23-cv-00374 (W.D. Tex. Jan. 29. 2024); Pileggi v.Washington Newspaper Publishing Co., 2024 WL 324121, 10(D.D.C. Jan. 29. 2024). In the Brown case, because theplaintiffs did not allege that their "status as a newslettersubscriber was a condition to accessing the site's videos, orthat it enhanced or in any way affected their viewing experience,they had not alleged he was a subscriber of video content.Likewise, the Pileggi court found that "merelyalleging that she visited the Washington Examiner website andwatched videos on that site, wholly separate from her newslettersubscription breaks the link between the service to which she was asubscriber and her assessing of audio-visual content" whichwas fatal to her claim. These decisions narrow the scenarios under which a valid VPPAclaim can be brought and lessen the potential risk that any websiteoperator with any video content is a potential target. The content of this article is intended to provide a generalguide to the subject matter. Specialist advice should be soughtabout your specific circumstances. AUTHOR(S)
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