On November 27, 2023, a federal trial court in California ruled on a motion to dismiss a complaint involving a website that included videos and social media features.  The court found for the defendant and dismissed the class action complaint, which alleged that the site violated the federal Video Privacy Protection Act (VPPA).  The dismissal was without prejudice and gave the plaintiff the right to amend the complaint.  Kuzenski v. Uproxx LLC, No. 2:23-cv-00945-WLH-AGR, 2023 WL 8251590 (C.D. Cal. Nov. 27, 2023).

Background

Congress enacted the VPPA in 1988 as a privacy law with the purpose to prohibit a “video tape service provider” from “knowingly disclosing” personally identifiable information (PII) about its “consumers” in connection with the “rental, purchase or delivery of video tapes or similar audio visual materials.”   18 U.S.C. § 2710(b). The court stated that, in order to bring a claim under the VPPA, “a plaintiff must allege that (1) a defendant is a ‘video tape service provider,’ (2) the defendant disclosed ‘personally identifiable information concerning any customer’ to ‘any person,’ (3) the disclosure was made knowingly, and (4) the disclosure was not authorized.”  (citations omitted).  The VPPA defines “consumers” narrowly:  “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 U.S.C. § 2710(a)(1).

The Uproxx website at issue in the suit offers all viewers news and culture information, including videos.  The site is publicly available, but users can subscribe and receive some additional benefits, such as custom avatars, the ability to communicate with other subscribers, and emails that contain links to content and videos on the site.  The complaint alleged that the site also uses some technology provided by Facebook, called “Facebook Pixel,” which is an analytics tool that collects information about the user, including the name of the video the user watched, and can connect that information to the user’s Facebook ID.  Facebook Pixel will then provide that information to Facebook. The plaintiff alleged that he did not consent to this disclosure of his Facebook ID and Uproxx video watch history to Facebook.

This complaint is one of over 150 class action complaints filed in federal courts throughout the U.S. alleging VPPA violations based on a wide variety of websites that include videos and also use analytics tools such as Facebook Pixel.

The Ruling

The court focused on whether the plaintiffs were “consumers” under the VPPA; in other words, were they “subscribers” to the videos?  The court looked to other courts’ statutory interpretation of the term “subscriber” as requiring a factual nexus between the subscription and the allegedly actionable video content. Based on the complaint, the court found that “the facts alleged indicate that becoming a subscriber provides a user with social media type benefits, such as a user profile, avatars, and ability to communicate with other users—not access to videos.”  The court therefore ruled that the plaintiff’s complaint failed to allege a factual nexus or relationship between the subscription benefits and the Defendant’s allegedly actionable video content.  The court also found:  “While Plaintiff does allege that subscribers receive an e-mail containing links to videos, this alone is insufficient as the videos are not alleged to be exclusive to subscribers and can be accessed by anyone visiting Defendant’s Website.”

The court granted the 12(b)(6) motion for failure to state a claim for these reasons and did not reach the defendant’s other arguments. Note, however, that the court dismissed without prejudice and permitted the plaintiffs to amend the complaint.

Takeaways

The VPPA is a popular choice for class actions involving websites with videos and social media features.  As this case demonstrates, the requirements of the VPPA can be tricky to establish, both for plaintiffs and defendants.