When Is a User a “Subscriber”? What Florida Businesses Need to Know About VPPA Consumer Status

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,” such as Blockbuster and Redbox, to streaming platforms and other digital media formats. Crucially, courts have held that websites qualify as videotape service providers under the VPPA. 

The VPPA provides a federal cause of action for aggrieved “consumers,” allowing them to recover damages of at least $2,500, punitive damages, attorneys’ fees and costs, and other equitable relief. Under the VPPA, a ‘consumer’ means any renter, purchaser, or subscriber of goods or services from a videotape service provider. 18 U.S.C. § 2710(a)(1). 

How the Eleventh Circuit defined “Subscriber.”

In Ellis v. Cartoon Network (“Ellis”), the Eleventh Circuit analyzed what constituted a “subscriber” under the VPPA. The appellant-plaintiff watched video clips on Cartoon Network’s app for free from Cartoon Network’s smartphone app. The Eleventh Circuit concluded that “a ‘subscription’ involves some type of commitment, relationship, or association (financial or otherwise) between a person and an entity.” The court affirmed summary judgment for the defendant-appellee, Cartoon Network–finding that solely watching video clips on a free smartphone application did not confer “subscriber” status to Ellis. 

The Eleventh Circuit identified several factors indicating an absence of “commitment” or “relationship,” and thus supporting its finding that Ellis was not a “subscriber” under the VPPA. Specifically, that Mr. Ellis did not:

1. Create  an account with Cartoon Network;
2. Provide personal information to Cartoon Network;
3. Pay for use of the Cartnoon app; 
4. Become a registered user of Cartoon Network or the CN app; 
5. Receive a Cartoon Network ID;
6. Create a Cartoon Network profile; 
7. Enroll in recurring services or communications; or 
8. Establish a relationship that would allow him access to exclusive content. 

In the Eleventh Circuit’s view, downloading an app for free and using it to view content at no cost is not enough to make a user of the app a “subscriber” under the VPPA, as there is no ongoing commitment or relationship between the user and the entity which owns and operates the app. 

The takeaway for Florida businesses is that passive, anonymous viewing of free video content may fall outside VPPA coverage. However, once a business creates an ongoing relationship, such as account registration, newsletter subscriptions, recurring access, or personalized dashboards, the analysis changes.

Recent Cases Elaborating on “Subscriber” Status

The Eleventh Circuit also noted factors which did not necessarily—in isolation—indicate that a plaintiff qualified as a “subscriber” under the VPPA. For example, noting that neither (1) payment video content nor (2) video providers requiring a “log in” to access the content were dispositive on this subscription issue. As the Northern District of Florida remarked in Edwards v. Learfield Comm’ns, LLC, simply signing up to receive access to video content does not denote the existence of a “durable commitment.”

Florida businesses offering video content while utilizing pixel tracking should carefully consider:

1. Disclosing personally identifiable information with video content information; and
2. (2) the structure and terms of long-term customer relationships.

Moving forward, businesses using pixel trackers must be conscious of which types—and combinations—of personal data they transmit to third-parties. VPPA non-compliance can be costly, with statutory damages reaching $2,500 per violation—particularly, when plead as a class action with numerous class members alleging one or more violations.

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. Because VPPA claims are frequently filed as class actions, the financial exposure can multiply quickly. Even if only a portion of website users qualify as “subscribers,” statutory damages of $2,500 per violation can create significant aggregate liability.