In Sum:
- The VPPA is now being used to sue online companies.
- The Sixth Circuit agreed to dismiss Plaintiff’s VPPA claims because he was not a “consumer” within the meaning of the privacy statute.
- Courts across the country are split as to what constitutes a “consumer” under the VPPA.
Introduction
On April 3, 2025, the Sixth Circuit Court of Appeals affirmed the dismissal of a plaintiff’s Video Privacy Protection Act (“VPPA”) lawsuit brought against Paramount Global (“Defendant”). In Salazar v. Paramount Global, Mr. Salazar (“Plaintiff”) alleged that Defendant violated the VPPA by knowingly disclosing: 1) his personally identifiable information (“PII”); and 2) data containing the videos and corresponding webpages that Plaintiff accessed (collectively, “Personal Viewing Information”) to a third party without his express consent. As compensation for the alleged harm, Plaintiff sought statutory damages and injunctive relief, together with reasonable attorneys’ fees and costs. The Sixth Circuit determined that to be considered a “consumer” under the VPPA, an individual must purchase goods or services of an audio-visual nature. Because Plaintiff did not meet the statute’s definition of a “consumer,” the Sixth Circuit upheld the district court’s dismissal of his VPPA claims.
As our readers are aware, a flurry of recent eavesdropping lawsuits have been filed against defendants that utilize tracking software on their websites. A common refrain is that businesses are illegally gathering data by tracking and recording consumer website activity without consent. As was the case in Salazar, many of these businesses operate websites that utilize Meta Pixels. The Sixth Circuit’s decision to uphold the dismissal of Plaintiff’s VPPA claims highlights the importance of carefully dissecting all aspects of the allegations contained in these VPPA lawsuits. In the context of online consumer privacy lawsuits, the VPPA is a relatively new frontier, and the courts will have to establish new precedent as more online VPPA lawsuits are filed in the coming months.
What is the VPPA?
The VPPA, a federal privacy statute enacted in 1998, was originally drafted to protect consumers who conducted business with video tape service providers. The statute is largely a relic of the past, as the vast majority of consumers no longer rent video tapes. However, the last few years have seen a spike in VPPA claims. Plaintiffs are now bringing VPPA claims against defendants that provide video content on the Internet.
To properly state a VPPA claim, a plaintiff must demonstrate that: “(1) the defendant disclosed ‘personally identifiable information concerning any customer’ to ‘any person,’ (2) the disclosure was made knowingly, (3) the disclosure was not authorized,” and (4) the defendant is a “video tape service provider” within the meaning of the statute.
The VPPA defines a “consumer” as a “renter, purchaser, or subscriber of goods or services” from a “video tape service provider.” The statute further defines a “video tape service provider” as a person or entity engaged in the business of rental, sale, or delivery of “prerecorded video cassette tapes or similar audio visual materials,” or one that receives a consumer’s PII from a video tape service provider.
Why Was the Dismissal of Plaintiffs’ VPPA Claims Upheld?
Defendant sends out a regular email newsletter, in addition to operating a website that provides audio visual content to its customers. In his Complaint, Plaintiff explained that he subscribed to Defendant’s newsletter, which contained links to articles on Defendant’s website. These articles, Plaintiff claimed, contained videos, photographs, and other media content. Plaintiff alleged that Defendant violated the VPPA by utilizing Meta Pixels on its website that recorded and subsequently disclosed PII to Meta for marketing purposes. In reaching its decision, the district court determined that the VPPA’s protections are only afforded to “consumers” as contemplated by the statute. Because Plaintiff was not a “renter, purchaser, or subscriber” of/to Defendant’s audio visual goods or services, the court dismissed his VPPA claims.
On appeal, the Sixth Circuit arrived at the same conclusion as that of the district court, using a similar analysis. The Court found that the VPPA applies to the buying, renting or subscribing of audio-visual content, and not just “any and all products or services” that a seller might provide. Plaintiff subscribed to a newsletter, which the Court found did not qualify as audio-visual material. Thus, Plaintiff was not a consumer for purposes of the statute. Accordingly, it upheld the dismissal of Plaintiff’s VPPA claims.
Carefully Examine VPPA Claims
Lawsuits filed pursuant to the VPPA and other consumer data privacy statutes are on the rise. In fact, Plaintiff filed a nearly identical VPPA lawsuit against the National Basketball Association (“NBA”) roughly one month after he initiated the action against Defendant. Incredibly, this matter was also dismissed and appealed; and the Second Circuit decided to reverse the district court’s dismissal.
Businesses that display or distribute audio visual media on the Internet must carefully safeguard against being named in a VPPA lawsuit. In the event that your business is named in a consumer data privacy lawsuit, retain experienced counsel to analyze every aspect of plaintiff’s claims. As evidenced by the current circuit court split concerning what constitutes a “consumer,” the future of VPPA interpretation is unclear. The attorneys at Klein Moynihan Turco can help ensure that no stone remains unturned on the way to successfully defending any VPPA lawsuit.
If you require assistance with regulatory compliance or related litigation defense, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for information purposes only and is not legal advice, nor is it a substitute for obtaining legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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Photo by Zach Ramelan on Unsplash
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