Is the Video Privacy Protection Act a New Weapon Against Consumers? | | Foley Hoag LLP – Security, Privacy and Law | So Good News

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[Author: Adam Aguirre]

On September 19, 2022, the Massachusetts District Court denied Boston Globe Media Partners LLC’s motion to dismiss the consumer lawsuit. The lawsuit is one of 47 filed since February 2022 against various companies, each based on the company’s use of Meta’s Pixel tracking tool.

Boston Globe Media Partners is “a multi-media group that delivers news, entertainment, and commentary across brands and platforms”; one of those platforms is the subscription site, bostonlobe.com. The Plaintiff in this case alleges that in order for them to register at bostonglobe.com, they were required to disclose their personally identifiable information (PII). Specifically, the Plaintiff’s group alleged that the Globe improperly obtained and disclosed subscriber information by taking a “Facebook Tracking Pixel – a piece that ‘tracks people and their activities’ by recording what subscribers write and post. A record of what happened on Facebook.” Ambrose v. Boston Globe Media Partners LLC, 2022 US Dist. LEXIS 168403 (D.Mass., Sept. 19, 2022). The plaintiffs also argued that the disclosures violated the federal Video Privacy Protection Act (VPPA), a law that requires companies to obtain informed consent from consumers to release their personal information.

In order to make a claim under the VPPA, plaintiffs “must allege that ‘the agent on the videotape . . . knowingly disclosed . . . .'[d]for each person, personally identifiable information about the buyer of such provider. In re Nickelodeon Consumer Privacy Litig., 827 F.3d 262, 279 (3d Cir. 2016). The VPPA defines a “video tape dealer” as “any person, engaged in business, or involved in domestic or foreign trade, rental, sale, or transfer of pre-recorded video tapes or visual aids.” 18 USC § 2710(a)(4). And PII is defined by the VPPA as “information that identifies whether an individual has requested or received video materials or services from a videotape service provider.” 18 USC § 2710(a)(3). In this case against Globe, the judge found that the plaintiffs clearly stated that they wanted help, which shows that: (1) Globe is in the business of providing videos to them. subscribers; (2) disclosed PII, including the subscriber’s Facebook ID, email address, first and last name, mailing address, and videos the subscriber viewed; and (3) Globe video subscribers are consumers under the law. Ambrose, 2022 US Dist. LEXIS 168403 at *5-6.

There has been a rise in lawsuits against companies for using the Meta tracking tool under the VPPA; This suggests that plaintiffs’ attorneys may try to stretch the VPPA deeper than Congress intended. Congress passed the VPPA in 1988, after a news agency obtained a list of movies that Robert Bork’s family had rented from a movie rental store — without Bork’s permission — during his tenure on the Supreme Court. Plaintiffs’ lawyers now want to use the VPPA to stop companies from disclosing information about their online viewing (and punish those who do).

When a Ambrose The court denied the Globe’s motion to dismiss, it is not certain that the Plaintiff’s VPPA claim will prevail. Of the 47 proposed VPPA suits to date, five have been voluntarily dismissed. Many other cases did not reach the recognition stage. But criminals are big. The VPPA gives consumers the right to take action, and the potential damages can be substantial. 18 USC § 2710(c)(1). Awards can include actual damages (though not less than $2,500 per injured party), punitive damages, attorney’s fees, and other legal costs. 18 USC § 2710(c)(2)(A)-(C). Given that the class of plaintiffs may include hundreds of thousands of consumers, companies that access consumer data have reason to closely monitor VPPA claims.

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