{"id":1810,"date":"2024-10-17T07:28:02","date_gmt":"2024-10-17T11:28:02","guid":{"rendered":"https:\/\/blogs.duanemorris.com\/classactiondefense\/?p=1810"},"modified":"2024-10-17T07:28:02","modified_gmt":"2024-10-17T11:28:02","slug":"second-circuit-holds-that-the-vppa-applies-to-subscribers-of-non-audiovisual-content","status":"publish","type":"post","link":"https:\/\/blogs.duanemorris.com\/classactiondefense\/2024\/10\/17\/second-circuit-holds-that-the-vppa-applies-to-subscribers-of-non-audiovisual-content\/","title":{"rendered":"Second Circuit Holds That The VPPA Applies To Subscribers Of Non-Audiovisual Content"},"content":{"rendered":"
\n
\"\"<\/a><\/figure>\n<\/div>\n\n\n

By Gerald L. Maatman, Jr., Justin R. Donoho, and Ryan Garippo<\/strong><\/p>\n\n\n\n

Duane Morris Takeaways:<\/strong>\u00a0 On October 15, 2024, in Salazar v. NBA, 2024 WL 4487971 (2d Cir. Oct. 15, 2024), a unanimous panel of the U.S. Court of Appeals for the Second Circuit\u00a0reversed<\/u> <\/a>the dismissal of a privacy class action against the National Basketball Association (\u201cNBA\u201d) and held that a web user who casually watched videos on the NBA\u2019s website after signing up for a free email newsletter plausibly alleged that he was a \u201csubscriber of goods and services\u201d under the Video Privacy Protection Act (\u201cVPPA\u201d).\u00a0 The Second Circuit was unpersuaded by the NBA\u2019s arguments that the VPPA applies only to subscribers of audiovisual content.\u00a0 Instead, it found, as a matter of first impression, that an email newsletter qualifies as \u201cgoods or services\u201d under the VPPA, reversed the dismissal order, and remanded for the district court to address the NBA\u2019s other arguments, including whether the plaintiff failed to plausibly allege his lack of consent and the NBA\u2019s knowing disclosure.<\/em><\/p>\n\n\n\n

Background<\/strong><\/p>\n\n\n\n

This case is one of a hundred or so VPPA class actions that plaintiffs have filed nationwide alleging that Meta Pixel, Google Analytics, and other similar software embedded in defendants\u2019 websites secretly captured plaintiffs\u2019 online video watching histories and sent it to Meta, Google, and other online advertising agencies.  This software, often called website advertising technologies or \u201cadtech\u201d is a common feature on millions of corporate, governmental, and other websites in operation today.  Plaintiffs\u2019 typical theory in these cases is that they were \u201csubscriber[s] of goods or services from a video tape service provider\u201d under the VPPA, 18 U.S.C. \u00a7 2710, such that the defendants therefore violated that statute by knowingly disclosing their video watching histories without their consent via the use of adtech.<\/p>\n\n\n\n

The VPPA was enacted in 1988, after a newspaper published a profile on Supreme Court nominee Judge Robert Bork\u2019s video rental history that identified 146 films he and his family had rented from a video store.  Id. <\/em>at *9.  Although Congress later amended the VPPA in 2012, \u201cto clarify that a video tape service provider may obtain a consumer’s informed, written consent on an ongoing basis and that consent may be obtained through the Internet … much of the 1988 VPPA’s text remains unchanged.\u201d  Id. <\/em>at **9-10.  Thus, in VPPA cases, courts are often left to \u201cgrapple with how the language of this statute applies in today’s increasingly online world.\u201d  Id. <\/em>at *1.<\/p>\n\n\n\n

In Salazar<\/em>, the plaintiff brought suit against the NBA.  According to the plaintiff, he signed up for an online email newsletter offered by the NBA and, thereafter, visited the NBA\u2019s website, where he watched videos.  Id.   <\/em>The plaintiff further alleged that, after he watched those videos, his video-watching history was sent to Meta without his permission via the NBA\u2019s undisclosed use of the Meta Pixel on its website.  Id.  <\/em>Based on these allegations, the plaintiff alleged a violation of the VPPA.  The NBA moved to dismiss under Rule 12(b)(6), arguing that the plaintiff failed to plausibly allege a violation of the VPPA because, among other things, (1) the plaintiff did not sign up for any \u201caudiovisual <\/em>\u2018good or service,\u2019\u201d id. <\/em>(emphasis in original); (2) the NBA did not knowingly disclose the video-watching history to Meta, as Plaintiff was the one who did that via his own browser and Facebook settings, id. <\/em>at *4; and (3) the plaintiff consented to disclosure to Meta by consenting to the NBA\u2019s privacy policy.  Id. <\/em>at *4 n.4.  The district court accepted the NBA\u2019s first argument and dismissed on that basis, without reaching the other two arguments.  The Plaintiff appealed.<\/p>\n\n\n\n

The Second Circuit\u2019s Decision<\/strong><\/p>\n\n\n\n

The Second Circuit agreed with the plaintiff and reversed. It rejected the district court\u2019s conclusion that the VPPA applies to subscribers only of audiovisual services.<\/p>\n\n\n\n

First, the Second Circuit found that the VPPA\u2019s language saying it applies to \u201cany renter, purchaser, or subscriber of goods or services from a video tape service provider,\u201d id.<\/em> \u00a7 2710(a)(1), \u201cmakes no mention of audiovisual materials\u201d in reference to the \u201cgoods or services.\u201d  Id. <\/em>at *11.  This omission was meaningful, according to the court, because Congress knew how to include the word \u201caudiovisual\u201d in other portions of the VPPA, namely, its definition of a \u201cvideo tape service provider\u201d as including a business engaged in renting, selling, or delivering prerecorded video cassette tapes \u201cor similar audio visual materials.\u201d  Id. <\/em>(quoting 18 U.S.C. \u00a7 2710(a)(4)).  As the Second Circuit explained, \u201cCongress’s decision to use different words in different definitions strongly signals its intent to convey different meanings.\u201d  Id.<\/em><\/p>\n\n\n\n

Moreover, the Second Circuit held that under the NBA\u2019s interpretation of \u201cgoods and services\u201d as audiovisual materials, \u201cCongress’s express restriction in the definition of \u2018personally identifiable information\u2019 to information about \u2018video<\/em> materials or services\u2019 would be superfluous.\u201d  Id.<\/em><\/p>\n\n\n\n

Further, the Second Circuit found that although the First and Eleventh Circuits are split on whether a person who merely downloads an app to view content counts as a \u201csubscriber,\u201d that circuit split was not implicated here because the plaintiff alleged that he signed up for the newsletter and, in doing so, provided his email address, IP address, and cookies associated with his device.  Id. <\/em>at *15.  These allegations were sufficient, the Second Circuit held, to allege he was a \u201csubscriber.\u201d  As the Second Circuit explained, the NBA\u2019s relationship with the plaintiff was \u201cdistinct from its relationship with casual NBA.com video-watchers who had not<\/em> signed up for the newsletter.\u201d  Id. <\/em>at *15 (emphasis added).<\/p>\n\n\n\n

In short, the Second Circuit concluded that a web user who casually watched videos on the NBA\u2019s website after signing up for a free email newsletter plausibly alleged that he was a \u201csubscriber of goods and services\u201d under the VPPA.  The Second Circuit therefore reversed and remanded for the district court to address the NBA\u2019s remaining arguments in the first instance.  Id. <\/em>at *4 n.4, 16.<\/p>\n\n\n\n

Implications For Companies<\/strong><\/p>\n\n\n\n

The Second Circuit\u2019s opinion serves as a cautionary tale for companies using adtech on webpages containing video content.  As the ruling shows, VPPA litigation risk for such companies is not limited to users who sign up to receive the video content.  In addition, companies using adtech on webpages containing video content face the risk of VPPA class actions by allowing users to sign up for other, non-audiovisual goods or services.  Further, companies using adtech also face the risk of VPPA class actions merely by making an app available to view the video content, at least in some circuits, as the Second Circuit noted. <\/p>\n\n\n\n

As adtech and online videos continue to proliferate, organizations should consider in light of Salazar<\/em> whether to modify their website terms of use, data privacy policies, and all other notices to the organizations\u2019 website visitors and customers to describe the organization\u2019s use of adtech in additional detail.\u00a0 Doing so could deter or help defend a future class action lawsuit similar to the many that are being filed today, alleging omission of such additional details, and raising high-dollar claims for statutory damages brought under not only the VPPA ($2,500 per alleged class member), as in this case, but also federal and state wiretap acts and consumer fraud acts, as in other cases we blogged about here<\/a>, here<\/a>, and here<\/a>.<\/p>\n","protected":false},"excerpt":{"rendered":"

By Gerald L. Maatman, Jr., Justin R. Donoho, and Ryan Garippo Duane Morris Takeaways:\u00a0 On October 15, 2024, in Salazar v. NBA, 2024 WL 4487971 (2d Cir. Oct. 15, 2024), a unanimous panel of the U.S. Court of Appeals for the Second Circuit\u00a0reversed the dismissal of a privacy class action against the National Basketball Association … <\/p>\n

Continue reading “Second Circuit Holds That The VPPA Applies To Subscribers Of Non-Audiovisual Content”<\/span><\/a><\/p>\n","protected":false},"author":583,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[2],"tags":[],"ppma_author":[30],"class_list":["post-1810","post","type-post","status-publish","format-standard","hentry","category-general"],"authors":[{"term_id":30,"user_id":583,"is_guest":0,"slug":"classactiondefense","display_name":"Class Action Defense","avatar_url":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-content\/uploads\/sites\/56\/2020\/10\/dmlogo.jpg","0":null,"1":"","2":"","3":"","4":"","5":"","6":"","7":"","8":""}],"_links":{"self":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/1810","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/users\/583"}],"replies":[{"embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/comments?post=1810"}],"version-history":[{"count":0,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/posts\/1810\/revisions"}],"wp:attachment":[{"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/media?parent=1810"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/categories?post=1810"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/tags?post=1810"},{"taxonomy":"author","embeddable":true,"href":"https:\/\/blogs.duanemorris.com\/classactiondefense\/wp-json\/wp\/v2\/ppma_author?post=1810"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}