In 2012, Congress amended the VPPA to reflect the realities of the 21st century. The amendment reflected modern society’s shift from corner video stores, like Blockbuster and Redbox, to streaming platforms and other forms of digital media. Crucially, for business owners, courts have held that websites qualify as a video tape service provider within the VPPA. Indeed, as the Northern District of Texas remarked in Frawley v. Nexstar Media Grp. Inc. “electronic disclosures of a person’s video-viewing history, even if not explicit, can violate the VPPA.”
For Florida businesses using pixel tracking for data analytics, email subscription models, or embedded video content, this ambiguity creates real litigation risk. Courts increasingly treat digital tracking disclosures as potential VPPA violations when user identifiers are transmitted alongside video-related data.
What Qualifies as “Personally Identifiable Information” under the VPPA?
The VPPA defines “personally identifiable information” (“PII”) as information that identifies a person as having requested or obtained specific video materials or services from a videotape service provider. 18 U.S.C. § 2720(a)(3). To make a VPPA claim, a plaintiff must allege that the defendant knowingly disclosed:
- The user’s identity;
- The video material’s identity; and
- The connection between the two—i.e., that the user had ‘requested or obtained’ the video material.
- What Constitutes “Specific Video Materials” under 18 USC § 2720(a)(3)?
As an initial comment, the Eleventh Circuit, the Court of Appeals most relevant to Florida businesses, has expressly declined to comment on what constitutes “specific video materials.” However, the Southern District of Florida, in Kueppers v. Zumba Fitness, LLC (“Kueppers”), provided some insight. In Kueppers, the court addressed whether the disclosure of a URL webpage containing a video qualifies as disclosure of “specific video materials” within the meaning of the VPPA.
The Southern District noted several relevant holding, including rulings that denied dismissal of the Plaintiff’s complaint where the plaintiff plead (1) a disclosure of Facebook ID, URL address, and website title, (2) a disclosure which linked a Facebook ID to a specific person, a URL to a particular video, and the specific person to the particular video; (3) disclosure of a website visited via the Facebook tracking pixel—in that case, the Plaintiff was not even required to plead the name of the viewed video.
The Knueppers’ opinion provides significant insight for businesses that use pixel tracking for advertising. There, the court held that the plaintiff sufficiently alleged that the Defendants disclosed URLs containing when they pleaded the following:
102. When the purchase of an on-demand video instructor course is complete, the customer is routed to a new webpage (also hosted on Defendant’s Website). This page says “YOU’RE ALL SET.” It also prominently displays: (1) the name of the individual who purchased the on-demand video materials and (2) the name of the specific video materials that the person purchased.
103. The “YOU’RE ALL SET” pages also have the Meta Pixel installed. Defendant uses the Meta Pixel to transmit the URLs of these webpages, along with the FIDs of the individuals who purchased the on-demand video materials and hwo [sic] are named on each page, to Meta.
Whether a defendant must disclose the video title to violate the VPPA has not been addressed by the Eleventh Circuit. However, the Southern District noted that district courts across the country have found that disclosure of the video’s title is not technically required to succeed on a VPPA claim.
Based on recent decisions, businesses utilizing pixel tracking which transmit users’ identifying information and either (1) the URL link to the video; or (2) the name of the video, expose themselves to liability. Crucially, for businesses using analytics tools which capture personal information and who also utilize some form of video content, this information should not be disclosed together to a third-party.
VPPA claims are frequently filed as class actions. With statutory damages of up to $2,500 per violation, exposure can multiply quickly based on the number of website visitors or subscribers affected. Even businesses that believe they are operating in good faith may face significant defense costs and reputational impact.
Businesses which utilize video content and tracking pixels should assess their VPPA exposure now. Contact us to speak with Jimerson Birr’s privacy and litigation attorneys about pending VPPA litigation, compliance strategies, and litigation risk mitigation.