Report from MediaPost
In Brief – The Supreme Court has agreed to hear a case that could clarify how a federal privacy law enacted in 1988 applies to modern online video services. The dispute centers on the Video Privacy Protection Act (VPPA), which was enacted after a video store disclosed the rental history of Supreme Court nominee Robert Bork and bars video rental companies from sharing consumers’ identifiable viewing information without consent. Although courts have generally agreed that the VPPA applies to online video services, they remain divided over key definitions, including who qualifies as a “consumer” and what accounts for “personally identifiable information”. The case before the Court stems from a 2022 lawsuit by Michael Salazar, who alleged that Paramount’s 247Sports.com violated the VPPA by sending his video-viewing data to Meta through the Meta Pixel. Both a federal district court and a divided Sixth Circuit panel ruled that VPPA protections apply only to people who subscribe to goods or services primarily involving audiovisual material, not newsletters. Other courts, however, have taken a broader view.
Context – A wave of VPPA class action lawsuits has been filed against companies with websites that include video clips and used embedded analytics tools like Meta’s Pixel. A 2024 decision by the Second Circuit Court of Appeals to reinstate a VPPA lawsuit against the NBA based on an expansive definition video “consumer” under the law gave life to other litigation, but several district judges in the Second Circuit have since rejected VPPA suits arguing that an “ordinary person” could not interpret the data, a position later backed by the same appeals court in a case targeting the NFL. The lawsuit against the NBA was then dismissed a second time, on the new grounds. The Supreme Court rejected the NBA’s appeal of initial Second Circuit appeals court ruling. In California, plaintiffs often allege that the Meta Pixel violates California’s pre-internet wiretap law as well. US District Judge Vince Chhabria threw out one such claim last year, described the state’s wiretap law as “a total mess,” and called for California lawmakers to rewrite it.