What if you could face lawsuits and fines of $2,500 per violation, in part because you have videos—movies, sports highlight reels, daily news recaps, home and lifestyle improvement segments, or even celebrity interviews—somewhere on your website? The Supreme Court recently agreed to hear a case that could reshape modern privacy law for individuals and businesses across the country.
At issue is the Video Privacy Protection Act (VPPA), a nearly 40-year-old statute originally enacted after a newspaper published a profile of a then-Supreme Court nominee based on his video-rental history. The statute created a mechanism for individuals to sue those who knowingly disclose information about their video-watching habits and protects consumers against a “video tape service provider” that knowingly discloses their “personally identifiable information.” With the rise of the Internet and the ever-changing landscape of modern technology, courts have reached different conclusions about what being a consumer under the statute means these days.
Some courts have found consumers to include those who purchase or subscribe to any service—even a free account or a newsletter—from websites that contain videos, even if the subscription or the purchase itself is not video-related. Other courts have interpreted the definition more narrowly and have held that consumers are limited only to those who specifically subscribe to or purchase audiovisual goods and services. The Supreme Court has now agreed to resolve this dispute and clarify the scope of a consumer under the VPPA.
There are significant potential implications of the Supreme Court’s decision for individual users and companies alike. Today, a number of lawsuits brought under the VPPA concern websites’ and mobile applications’ uses of tracking tools such as cookies or pixels to send an individual’s data and viewing history to third-party advertising and analytics companies. If the Supreme Court adopts a more narrow view of a consumer, only those who sign up for or purchase video-related services from a video tape service provider, which may include websites and streaming services, could bring a lawsuit.
On the other hand, if the Supreme Court adopts a broader definition of a consumer, the class of people able to sue under the VPPA would be expanded and would add to the ongoing litigation today relating to pixel tracking and cookies. Under a broader definition, website or mobile app users who sign up for free accounts or newsletters or purchase non-video-related products from a website containing videos could be protected, even if they never paid for any video-related service. Companies that never saw themselves as “video tape service providers” under the VPPA could face significant liability given the statutory damages of $2,500 per violation, which could be multiplied for large class action litigation. However, applicability of the VPPA would still depend on various other elements, such as whether the website qualifies as a video tape service provider or whether the information transmitted is personally identifiable information—both of which are highly debated today.
Until the Supreme Court decides this issue, individuals should be aware of how their information is used, and companies should consider what information they are sharing and how. Businesses that offer streaming or video services and companies whose websites contain any videos should consider revisiting how they use tracking technologies such as pixels and cookies and how they share viewing data with third-party advertising and analytics vendors as it relates to consent from the individual. If you are interested in learning about proactive measures to take or are concerned about how the Supreme Court’s decision could affect your business, please contact one of the authors or any member of McCarter & English’s Cybersecurity and Data Privacy team.
The case is Salazar v. Paramount Global (No. 25-459) and will likely be decided by this June.