Supreme Court to Resolve VPPA Split Over Who Qualifies as a “Consumer”
The U.S. Supreme Court is preparing to resolve a 2-2 federal appeals court split over who qualifies as a “consumer” under the Video Privacy Protection Act, a decision that could affect businesses offering online video alongside newsletters, memberships and other non-video services.
Oral argument in Salazar v. Paramount Global is scheduled for Oct. 14. The case asks whether a person must subscribe to audiovisual goods or services to receive the VPPA’s protections, or whether subscribing to any goods or services offered by a video provider is enough.
Four Circuits, Two Interpretations
The VPPA generally prohibits a video tape service provider from knowingly disclosing personally identifiable information concerning a consumer’s video materials or services, subject to statutory exceptions.
The dispute centers on the law’s definition of a “consumer,” which includes a renter, purchaser, or subscriber of goods or services from a video tape service provider.
The Second and Seventh Circuits have interpreted that language broadly. In Salazar v. NBA and Gardner v. Me-TV, the courts concluded that the goods or services do not themselves have to be audiovisual. Under that interpretation, a newsletter subscriber may potentially qualify as a consumer even when the subscription itself does not provide video content.
The Sixth and D.C. Circuits have taken the narrower approach, requiring a connection between the subscription and audiovisual goods or services. The Supreme Court filings describe the resulting disagreement as a 2-2 circuit split.
Tracking Pixel Case Heads to Supreme Court
The case before the Supreme Court involves Michael Salazar, who subscribed to the newsletter offered by Paramount’s 247Sports website. Salazar alleged that the website disclosed his Facebook ID and video-viewing information through Meta’s tracking technology.
The Sixth Circuit concluded that the newsletter subscription did not make Salazar a VPPA consumer because it was not sufficiently connected to audiovisual materials. The Supreme Court granted review in January.
The outcome could have broader implications for companies that provide video content while maintaining other relationships with website visitors, including newsletter subscriptions or other online services.
The VPPA provides for actual damages, with liquidated damages of $2,500, as well as potential punitive damages, attorneys’ fees, and other relief. That can create significant exposure when claims are brought on behalf of proposed classes.
A broader interpretation of “consumer” could allow VPPA claims based on non-video subscriptions or purchases, while the narrower interpretation could limit claims when the plaintiff’s relationship with the provider has no sufficient audiovisual connection.
For businesses using tracking technologies on websites containing video, the Supreme Court’s decision should provide nationwide guidance on a threshold question that currently depends in part on where a case is filed.
