Petitioner’s Definition of “Consumer” Broadens Potential VPPA Exposure

The VPPA arose from a corner video store’s disclosure of a judicial nominee’s video rentals and now may experience a renaissance in the age of targeted advertising. The VPPA functions on a fairly simple premise: If a company offers video content, it cannot share that information with third parties. As evidenced by Salazar’s Brief of Petitioner in Salazar v. Paramount Global, DBA 247Sports, his reading of “consumer” would drastically expand the number of people covered by the VPPA.

Under the VPPA, Congress defined “consumer” to mean “any renter, purchaser, or subscriber of goods or services from a videotape service provider.” 18 U.S.C. § 2710(a)(1) (emphasis added). The Supreme Court’s question relates to whether those “goods or services” must be audiovisual in nature in order for a person to receive VPPA protection.

As Salazar remarks, “the critical phrase ‘goods or services’ contains no limitation. It covers everything a videotape service provider offers.” Most businesses would not consider themselves a “video tape sales provider,” however, Salazar’s—and arguably, Congress’s—definition of “consumer” could expose businesses to litigation whose primary revenue stream does not involve video content. Instead, a customer could become a “consumer” under the VPPA even if their business transaction relates to other goods or services.

Such a paradigm would significantly broaden potential VPPA exposure for companies that offer or utilize video content. What form this video content could take remains to be seen. Much of the litigation thus far has focused on traditional media outlets: Hulu, Paramount, or ESPN. However, could a business with an embedded video on its website face exposure? What about companies that post short-form media (e.g., Reels, TikToks, etc.) on their social media accounts—do their subscribers or followers receive VPPA protection?

Paramount’s position, by contrast, requires a customer to subscribe to or purchase “audiovisual content” to receive VPPA protection, whereas Mr. Salazar argues that if any substantive transaction or subscription occurs, that business must not share the customer’s video history—even if wholly unrelated to the underlying business relationship.

Consider the following hypothetical: A person goes online to hire a roofer. That roofer’s website includes a 45-second video advertisement. The person watches the video to evaluate their work and subscribes to their YouTube channel. The person ultimately purchases roofing services from the roofer. The roofing business, intending to utilize targeted advertising to grow their business, discloses the person’s name and the fact that they watched the roofing advertisement to a third party. Could the roofer face VPPA exposure?

It’s a colorable argument—and one an enterprising Plaintiff attorney will certainly raise if Salazar succeeds. As illustrated by the above, businesses that otherwise may not consider themselves traditional media companies could be exposed to VPPA liability.

Even more notably, Salazar’s argument may well be stronger. Paramount, rather than Salazar, must ask the Supreme Court to read language into the statute—and essence, overrule Congress’s express language. Salazar opens his brief with a straightforward legal principle: “The language Congress writes into a statute is the law.” However, the Court will likely weigh the practical effects of Salazar’s interpretation, which could drastically change digital advertising in the United States.

Even when Congress passed the VPPA in 1988, the Senate heard testimony that “advanced information technology” fostered “more intrusive data collection,” including by businesses hoping “to better advertise their products.” If the Supreme Court rules for Salazar, companies utilizing targeted advertising will need to implement revised privacy policies to remain VPPA compliant. 
With statutory damages of $2,500 per violation and the potential for class action liability, the stakes of VPPA noncompliance are significant. If your business collects or shares consumer data in connection with video content, now is the time to act. Reach out to Jimerson Birr to speak with an attorney about your exposure.