Still, the VPPA has remained largely unchanged since its enactment, apart from a 2013 amendment. However, recent legal challenges to digital video data collection have led courts to reinterpret how the law applies to today’s video viewing habits.<\/p>\n\n\n\n
In this article, we\u2019ll examine what the VPPA law means for video platforms, the legal challenges associated with the law, and what companies can do to enable compliance while respecting users\u2019 privacy.<\/p>\n\n\n\n
Scope of the Video Privacy Protection Act (VPPA)<\/h2>\n\n\n\n
The primary purpose of the Video Privacy Protection Act (VPPA)<\/a> is to prevent the unauthorized disclosure of personally identifiable information (PII)<\/a> related to video rentals or purchases. PII under the law \u201cincludes information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.\u201d<\/em>\u00a0<\/p>\n\n\n\n The law applies to video tape service providers, which are entities involved in the rental, sale, or delivery of prerecorded video materials. Courts have interpreted this definition to include video streaming platforms like Hulu<\/a> and Netflix<\/a>, which have widely replaced physical video tape service providers.<\/p>\n\n\n\n The VPPA protects the personal information of consumers. The law defines consumers as \u201cany renter, purchaser, or subscriber of goods or services from a video tape service provider.\u201d<\/em><\/p>\n\n\n\n Video tape service providers are prohibited from knowingly disclosing PII linking a consumer to specific video materials, except in the following cases:<\/p>\n\n\n\n The 2013 amendment<\/a> expanded the conditions for obtaining consent, including through electronic means using the Internet. This consent must:<\/p>\n\n\n\n Tracking technologies like pixels are central to many claims alleging violations of the VPPA. Pixels are small pieces of code embedded on websites to monitor user activities, including interactions with online video content. These technologies can collect and transmit data, such as the titles of videos someone viewed, along with other information that may identify individuals. This combination of data may meet the VPPA\u2019s definition of personally identifiable information (PII).<\/p>\n\n\n\n VPPA claims often arise when companies use tracking pixels on websites with video content and transmit information about users\u2019 video viewing activity to third parties without requesting affirmative consent. Courts have debated what constitutes a knowing disclosure under the VPPA, but installing tracking pixels that collect and share video data has been found sufficient to potentially establish knowledge<\/a> in some cases.<\/p>\n\n\n\n Many legal claims under the VPPA focus on one or more of three critical questions:<\/p>\n\n\n\n Below, we\u2019ll look at how courts have considered these questions and interpreted the law in the context of digital video consumption.<\/p>\n\n\n\n Who is considered a video tape service provider under the law may depend on multiple factors. Courts have established that online streaming services qualify, but some rulings have considered other factors, which we\u2019ll outline below, to decide whether a business meets the law\u2019s definition.<\/p>\n\n\n\n The VPPA law defines a video tape service provider as a person engaged in the business of “prerecorded video cassette tapes or similar audiovisual materials.”<\/em> In 2022, a court ruled<\/a> that companies do not qualify as video tape service providers for any live video broadcasts, as live streaming does not involve prerecorded content.<\/p>\n\n\n\n However, if a company streams prerecorded content, it may qualify as a video tape service provider in relevant claims.<\/p>\n\n\n\n The definition of a video tape service provider in the digital age includes more than just video platforms that broadcast movies and TV shows. In a 2023 case<\/a>, a court ruled that a gaming and entertainment website offering prerecorded streaming video content fell within the scope of the VPPA definition of a video tape service provider.<\/p>\n\n\n\n Another 2023 ruling<\/a> found that the VPPA does not apply to every company that happens to deliver audiovisual materials \u201cancillary to its business.\u201d Under this decision, a video tape service provider\u2019s primary business must involve providing audiovisual materials. Businesses using video content only as part of their marketing strategy would not qualify as a video tape service provider under this reading of the law.<\/p>\n\n\n\n Online video services frequently operate on a subscription-based business model. Many legal challenges under the VPPA focus on whether an individual qualifies as a \u201csubscriber of goods and services from a video tape service provider.\u201d<\/em><\/p>\n\n\n\n Courts have varied in their opinions on whether being a consumer depends on subscribing to videos specifically. In a 2023 ruling<\/a>, a court held that subscribing to a newsletter that encourages recipients to view videos, but is not a condition to accessing them, does not qualify an individual as a subscriber of video services under the VPPA.<\/p>\n\n\n\n By contrast, a 2024 ruling<\/a> took a broader approach, finding that the term \u201csubscriber of goods and services\u201d<\/em> is not limited to audiovisual goods or services. The Second Circuit Federal Court of Appeal determined that subscribing to an online newsletter provided by a video tape service provider qualifies an individual as a consumer. This decision expanded the definition to recognize individuals who subscribe to any service offered by a video tape service provider as consumers.<\/p>\n\n\n\n Courts have generally agreed that providing payment to a video tape service provider is not necessary for an individual to be considered a subscriber. However, other factors play a role in establishing this status. <\/p>\n\n\n\n A 2015 ruling<\/a> held that being a subscriber requires an \u201congoing commitment or relationship.\u201d<\/em> The court found that merely downloading a free mobile app and watching videos without registering, providing personal information, or signing up for services does not meet this standard.<\/p>\n\n\n\n\n
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<\/figure>\n\n\n\nTracking technologies and Video Privacy Protection Act (VPPA) claims<\/h2>\n\n\n\n
Lawsuits under the Video Privacy Protection Act (VPPA)<\/h2>\n\n\n\n
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Does the party broadcasting video qualify as a video tape service provider?<\/h3>\n\n\n\n
Live streaming<\/h4>\n\n\n\n
\u201cSimilar audio visual materials\u201d<\/h4>\n\n\n\n
Focus of work<\/h4>\n\n\n\n
Is the individual claiming rights violations considered a consumer?<\/h3>\n\n\n\n
Type of service subscribed to<\/h4>\n\n\n\n
Payment<\/h4>\n\n\n\n
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