THOMSON REUTERS
Westlaw Today
Enter to open, tab to navigate, enter to select
Defending claims under the Video Privacy Protection Act
2023 PRINDBRF 0025
• Practitioner Insights Commentaries
• January 18, 2023
(January 18, 2023) - Jean Mooney of DTO Law discusses the resurgence of the Video Privacy Protection Act in light of recent lawsuits filed against websites using Facebook's Pixel to track website traffic.
Seeking to capitalize on the $2,500 per violation statutory damages of the Video Privacy Protection Act ("VPPA"), a number of firms have been busy filing suits this past year against defendants across the country. The common thread among these defendants is the presence of videos on their websites and their utilization of the ubiquitous Facebook Tracking Pixel — "a piece of code" that a business can put on its website "to measure the effectiveness of [its] advertising by understanding the actions people take on [its] website."1
Faced with the prospect of costly litigation, some defendants have opted for a quick settlement, while others have filed motions to dismiss, only to be met with an amended complaint requiring another responsive pleading.
As demonstrated by recent decisions overwhelmingly denying motions at the pleading stage, forgoing a motion to dismiss and engaging in discovery with the goal of filing an early motion for summary judgment may prove to be the more cost-effective path for resolving VPPA class actions.
Background of the VPPA
In direct response to the very public disclosure in a Washington newspaper of the movies rented by Judge Bork and his family over a two-year period, Congress enacted the VPPA in 1988.
The purpose of the legislation was — and remains — to protect the privacy of an individual's personal information when renting or purchasing movies. To that end, the VPPA prohibits the knowing disclosure by a video tape service provider of a consumer's personally-identifiable information ("PII"), i.e., information identifying a person as having requested or obtained specific video materials.
As defined by the VPPA, a "video tape service provider" is "any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials."2
When the VPPA was originally enacted in 1988, videos existed predominantly in one format — prerecorded video cassette tapes — and "video tape service providers" were easily-identifiable brick-and-mortar stores such as Blockbuster, which offered video cassette tapes for sale or rental. As technology has evolved, videos have moved from physical formats such as video cassette tapes and DVDs to digital formats, including online files.
And, according to plaintiffs, the "video tape service providers" potentially liable under the VPPA have expanded to include online content providers (e.g., Netflix, Hulu, HBO Max), as well as defendants whose products are "significantly tailored" to convey video content to consumers.3
Recent VPPA litigation
Because the VPPA does not define "similar audio visual materials," plaintiffs have attempted to expand the scope of "video tape service providers" even further to include any business offering any prerecorded videos containing any content (i.e., not limited to movies and television programs) on its website.
Embracing this expansive view, over the last year, class action plaintiffs have filed suit against dozens of defendants including the Boston Globe, NFL, NPR, Paramount, Sony Group, and AMC Networks.
The 2022 wave of class action complaints are based on a simple theory: A defendant's implementation of the Facebook Pixel on its website results in an unauthorized disclosure of consumers' PII in violation of the VPPA.
In support of this theory, the complaints typically allege:
(1) the defendant provides videos on its website and has implemented the Facebook Pixel;
(2) plaintiffs have Facebook accounts, signed up for an account on defendant's website, and viewed videos on that platform;
(3) each time plaintiffs viewed videos, the Facebook Pixel caused their web browsers to disclose to Facebook their Facebook ID and the title of videos viewed on third-party websites; and
(4) defendant made such disclosures knowingly.
Because these generic allegations can apply to almost any website utilizing the Facebook Pixel, the supply of potential defendants for these class actions is virtually limitless.
Risks of filing a motion to dismiss
As is often true, Defendants seeking to terminate a VPPA class action through a motion to dismiss face the inherent risk that plaintiffs will simply amend their complaint in response to the arguments presented in such a motion.4
Indeed, even if the court grants the motion to dismiss, the court's order merely provides an excellent blueprint for plaintiffs to amend their complaint so as to make it more difficult to defeat later. Of course, the more serious risk of bringing a motion to dismiss is a negative ruling that creates bad precedent going forward. Three recent decisions denying motions are illustrative.
In Ambrose v. Boston Globe Media Partners LLC, the district court denied the defendant's motion to dismiss plaintiffs' first amended complaint, noting that "although it is conceivable that after discovery it will become apparent that the Globe does not (as it maintains) transmit its digital subscribers' PII to Facebook in the manner Ambrose has alleged, at this juncture Ambrose has done enough to state a viable VPPA claim."5
The district court in Lebakken v. WebMD, LLC, followed suit, finding that plaintiff "state[d] a claim as a consumer under the VPPA," plaintiff "adequately alleged that WebMD disclosed her Facebook ID and email address in connection with her video viewing information to Facebook and that the disclosure of such information constituted a disclosure of PII," and plaintiff "plausibly allege[d] WebMD's conscious transmission of its consumers' private information."6
And in Czarnionka v. Epoch Times Ass'n, the district court denied the defendant's motion to dismiss, rejecting its argument that any PII allegedly disclosed was transmitted from the user's web browser directly to Facebook, "independent of any action by [d]efendant itself."7
The court stated: "As alleged in the Complaint, the Pixel was installed by Defendant on Defendant's website.... By installing the Pixel, Defendant opened a digital door and invited Facebook to enter that door and extract information from within."8
Unfortunately, even a successful motion to dismiss may result in undesirable case law. For example, although the district court in Stark v. Patreon, Inc., dismissed the VPPA claim with leave to amend, the dismissal was based solely on plaintiffs' failure to specify in their complaint whether the videos on defendant's website were prerecorded or broadcast live and the court's determination that only prerecorded videos fall within the VPPA's purview.9
"[I]n the interest of avoiding unnecessary further motion practice," the court also addressed and rejected other arguments advanced by defendant Patreon, finding that plaintiffs' other VPPA allegations were sufficient to withstand a motion to dismiss.10 Not surprisingly, plaintiffs subsequently amended their complaint to cure the pleading deficiency identified by the court.
Potential arguments for summary judgment
Eschewing a motion to dismiss in favor of an early motion for summary judgment may be the better approach. With the benefit of evidence obtained during discovery, a defendant may seek dismissal of a VPPA claim on several grounds.
First, the defendant may argue it does not constitute a "video tape service provider" under the VPPA because the videos on its website are not "prerecorded video cassette tapes or similar audio visual materials."11
The plain language of the VPPA, as well as its legislative history, confirm that "similar audio visual materials" refers to the video content of prerecorded video cassette tapes (i.e., movies or television programs) delivered in other media formats. Unless the videos on defendant's website fall into this category, the defendant should be able to demonstrate that its videos do not qualify as "similar audio visual materials" covered by the VPPA.
A second related argument is that the defendant does not constitute a "video tape service provider" because it is not engaged in the business of "rental, sale, or delivery" of similar audio visual materials.12 The "delivery" of videos contemplated by the VPPA may encompass online services such as Netflix and Hulu, whose businesses have replaced local video rental stores and are tailored to distribute prerecorded movies and television shows.
A defendant may also be substantially involved in the "delivery" of video content by providing access to such online streaming services. But a defendant that provides evidence to show its business fits into neither of these "delivery" categories is arguably not a "video tape service provider."
Another argument to consider on summary judgment is whether plaintiffs are "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," but does not define a "subscriber."13 If plaintiffs are not renters or purchasers of goods or services from the defendant, then they must demonstrate that they are subscribers.
The Eleventh Circuit has held that a "'subscription' involves some type of commitment, relationship, or association (financial or otherwise) between a person and an entity."14 If plaintiffs cannot establish a commitment or relationship between themselves and the defendant, then they are not "subscribers" afforded the protections of the VPPA.
Finally, a business defending a VPPA action may also consider arguing that the transfer of PII from a user's browser to Facebook is not a disclosure of PII by the business but, rather, the result of a user's independent actions and consent to Facebook's use of cookies.
A defendant cannot control which of its users have Facebook accounts, which users have clicked "keep me logged in" on Facebook, which users have manually cleared cookies from their browser, or which users have cookie-blocking software installed on their browsers. A user's choice to stay logged in to Facebook "does not trigger some new statutory duty on the part of [the defendant]."15
The future of VPPA litigation
The significant statutory damages available under the VPPA, combined with recent decisions denying motions to dismiss, effectively guarantee VPPA litigation will continue for the foreseeable future.
Until courts begin issuing decisions addressing open issues such as which videos qualify as "similar audiovisual materials," defendants hit with a VPPA class action should carefully weigh the benefits and risks of filing a motion to dismiss instead of waiting to file a motion for summary judgment.
When the complaint contains allegations likely sufficient to withstand a motion to dismiss on various grounds, forgoing a motion to dismiss in favor of a strategic motion for summary judgment may be the more prudent approach.
Notes
1 Facebook, About Meta Pixel, https://bit.ly/3Gp2S3P.
2 18 U.S.C.A. § 2710(a)(4) (West).
3 In re Vizio, Inc., Consumer Priv. Litig., 238 F. Supp. 3d 1204, 1221 (C.D. Cal. 2017); see also In re Hulu Priv. Litig., , at *4-6 (N.D. Cal. Aug. 10, 2012).
4 See, e.g., Goldstein v. Fandango Media, LLC, Case No. 9:22-cv-80569-KAM (S.D. Fl.), ECF Nos. 10, 11, 24-26.
5 , at *2 (D. Mass. Sept. 19, 2022).
6 , at *3-5 (N.D. Ga. Nov. 4, 2022).
7 , at *3 (S.D.N.Y. Nov. 17, 2022).
8 Id.
9 , at *6 (N.D. Cal. Oct. 13, 2022).
10 Id. at *6.
11 18 U.S.C.A. § 2710(a)(4).
12 Id.
13 18 U.S.C.A. § 2710(a)(1).
14 Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1256 (11th Cir. 2015).
15 Mollett v. Netflix, Inc., 795 F.3d 1062, 1066 (9th Cir. 2015).
A veteran litigator, Jean Mooney of DTO Law focuses on class-action and intellectual property litigation. She regularly defends data privacy class actions as well as consumer protection statute class actions involving California's Consumers Legal Remedies Act and similar statutes across the country. She is based in the firm's Los Angeles office and can be reached at [email protected].
)
Jean Mooney| End of Document | © 2024 Thomson Reuters. No claim to original U.S. Government Works. |