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

The Video Privacy Protection Act (“VPPA”) arose from a corner video store’s disclosure of Robert Bork’s video rental history during his judicial confirmation and now may experience a renaissance in the age of targeted advertising. The VPPA functions on a fairly simple premise: A visual media company cannot share its subscribers’ viewing history with third parties. As evidenced by Salazar’s Brief of Petitioner in Salazar v. Paramount Global, DBA 247Sports, his reading of “consumer” could 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.” Such a definition would require companies that utilize video media in most revenue-generating capacities to evaluate their advertising practices. Primarily, because disclosure of a customer or subscriber’s viewing history could violate the VPPA even if their business relationship relates to other unrelated 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 which makes publishes instructional YouTube videos which its embeds on its website face exposure? What about companies that post short-form media content (e.g., Reels, TikToks, etc.) on their social media accounts? Do their subscribers or followers receive VPPA protection? If a “consumer” can watch a company’s video content and subsequently make an unrelated purchase or enter into an unconnected subscription, businesses that offer video content in any capacity must be on notice.

Paramount’s position, by contrast, requires a customer to subscribe to or purchase “audiovisual content” to receive VPPA protection. Practically, Paramount’s definition would require that a person subscribe to or purchase a business’s video content and subsequently disclose that person’s viewing history to a third party. In contrast to Salazar’s delinked definition, such an interpretation of “consumer” would require a heightened relationship between the video content watched and the purchase from or subscription to the business.

Consider the following hypothetical: A person goes online to hire a roofer and locates a local company offering roofing services. The roofing company, as a means of advertising, operates a YouTube channel where it provides guides, tips & tricks, and hosts Q&As. The person watches a video from their channel 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 company’s video 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, in 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 minimum statutory damages of $2,500 with attorneys’ fees to successful plaintiffs 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.