Is the Video Privacy Protection Act a New Litigation Weapon for Consumers?

On September 19, 2022, a Massachusetts federal District Court denied Boston Globe Media Partners LLC’s motion to dismiss a consumer class action suit against it. This case is one of 47 proposed class actions filed since February 2022 against various companies, each based on a company’s use of Meta’s Pixel tracking tool.

Boston Globe Media Partners is a “multimedia organization that provides news, entertainment, and commentary across multiple brands and platforms”; one of those platforms is the subscription website,  The Plaintiff class in this case alleged that form them to subscribe to, they were required to reveal their personally identifiable information (PII). In particular, the Plaintiff class alleged that the Globe had obtained and improperly disclosed subscribers’ information by hosting “the Facebook Tracking Pixel—a piece of code that ‘tracks the people and type of actions they take’ by capturing a digital subscriber’s action and sending a record of that action to Facebook.”  Ambrose v. Boston Globe Media Partners LLC, 2022 U.S. Dist. LEXIS 168403 (D.Mass., Sept. 19, 2022). Plaintiffs further alleged that such disclosures violated the federal Video Privacy Protection Act (VPPA), a law requiring companies to obtain consumers’ informed and written consent in order to disclose their information.

To assert a claim under the VPPA, plaintiffs “must allege that ‘a video tape service provider . . . knowingly disclose[d], to any person, personally identifiable information concerning any consumer of such provider.” In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 279 (3d Cir. 2016).  The VPPA defines a “a video tape service provider” as “any person, engaged in business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio-visual materials.” 18 U.S.C. § 2710(a)(4). And PII is defined by the VPPA as “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 2710(a)(3). In this case against the Globe, the judge found that the plaintiff class had plausibly stated a claim for relief, making a sufficient showing for the current stage of the case that:  (1) the Globe engaged in the business of providing video content to its subscribers; (2) it disclosed PII, including subscribers’ Facebook ID, email, first and last name, mailing address, and what videos the subscriber had viewed; and (3) subscribers to the Globe’s videos are plausibly consumers under the law. Ambrose, 2022 U.S. Dist. LEXIS 168403 at *5-6.

There has been an uptick in claims against companies for their use of Meta’s tracking tool under the VPPA; this trend suggests plaintiffs’ lawyers may be trying to stretch the VPPA more broadly than perhaps Congress intended. Congress originally passed the VPPA in 1988, after a news organization obtained a list of films that Robert Bork’s family had rented at a local video rental store — without Bork’s consent — during the period surrounding his nomination to the Supreme Court. Plaintiffs’ lawyers are now seeking to use the VPPA to prevent companies from disclosing information relating to their viewing habits online (and punish those that do).

While the Ambrose court denied the Globe’s motion to dismiss, it is far from certain that the Plaintiff’s VPPA claims will ultimately be successful. Of the 47 proposed VPPA class action suits to date, five have been voluntarily dismissed. Most of the other cases have not yet reached the discovery phase. But the stakes are high. The VPPA provides consumers with a private right of action, and the potential damages can be steep. 18 U.S.C. § 2710(c)(1). Awards can include actual damages (though not less than $2,500 per injured person), punitive damages, reasonable attorneys’ fees, and other litigation costs. 18 U.S.C. § 2710(c)(2)(A)-(C). Considering that a plaintiff class could consist of hundreds of thousands of consumers, companies that access consumer data have reason to watch these VPPA claims closely.

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