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Abandoning Video Privacy Protection Act Claims – The Developing Non-Consumer Defense

Although Blockbuster Video may have become obsolete, there is still an existing but little-known law called the Video Privacy Protection Act (“VPPA”), 18 U.S.C. § 2710, et seq., aimed at safeguarding the privacy of video rental customers. Enacted in 1988 as a response to The Washington Post’s publication of Supreme Court nominee Robert Bork’s video rental history, the VPPA prohibits any “video tape service provider” from knowingly disclosing a consumer’s personally identifiable information (“PII”) to a third party without the consumer’s explicit consent. Prevailing plaintiffs in VPPA cases are entitled to receive liquidated damages of $2,500 per violation.

In recent months, numerous companies with an online media presence have faced a barrage of VPPA lawsuits. The majority of these lawsuits follow a similar pattern: plaintiffs who have a Facebook account allege that they watched a video on the defendant’s website and further claim that the website transmitted their video viewing history to Facebook through an embedded tracking pixel on the website. According to these plaintiffs, the tracking pixel discloses information to Facebook that enables an average person to identify specific individuals’ viewing activities, including the videos they watched. Since VPPA lawsuits are typically filed as class actions, they pose a significant threat to defendants who must grapple with the VPPA’s $2,500 damages provision multiplied by all similarly affected individuals in the United States.

While defendants have made repeated attempts to have these VPPA “pixel” lawsuits dismissed at the pleading stage, federal courts have mostly denied motions to dismiss, allowing such claims to proceed to the discovery phase. However, a recent ruling from the Northern District of California may indicate a new trend suggesting that courts will dismiss VPPA claims brought by plaintiffs who do not qualify as “consumers” under the VPPA. The VPPA defines a “consumer” as “any renter, purchaser, or subscriber of goods or services from a video tape service provider” (18 U.S.C. § 2710(a)(1)).

In the case of Jefferson v. Healthline Media, Inc., 2023 WL 3668522 (N.D. Cal. May 24, 2023), the plaintiff sued the owner of a website that offers articles and video content to users. The plaintiff alleged that she is an active Facebook and Instagram user who watches videos on Healthline’s website using the same browser she uses to log in to Facebook. She further alleged that Healthline utilized a pixel to collect the title of each video she viewed on the website and then sent her video viewing information to Facebook without her consent. Healthline moved to dismiss the VPPA claim on the grounds that the plaintiff did not qualify as a “consumer” under the Act.

The court agreed with Healthline and granted its motion to dismiss. Specifically, the court found that the plaintiff failed to adequately allege that she is a “consumer” under the VPPA because she did not state that she is a “renter” or “purchaser” of Healthline’s goods or services. Furthermore, the plaintiff did not plausibly allege that she is a “subscriber” to Healthline’s goods or services. Although the plaintiff claimed to have provided Healthline with her name and email address to subscribe to their email list, the court concluded that this was insufficient. As a result, the court dismissed the VPPA claim.

PRACTICAL IMPLICATIONS: The Healthline decision suggests that a VPPA claim is likely to fail if the plaintiff does not provide facts demonstrating some form of business relationship with the defendant prior to watching videos on their website. Simply accessing a website and watching a video, without any additional factors, may not be enough to qualify a person as a “consumer” under the VPPA. According to the logic of Healthline, there must be a connection between a potential subscriber and the defendant’s provision of video content. Only time will tell whether Healthline is an outlier or an indication of a more favorable landscape for VPPA defendants. Nevertheless, the “non-consumer” defense could open the door for more robust defense strategies against VPPA claims at the pleading stage.

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