The Tide of VPPA Privacy Litigation Shows No Signs of Ebbing
The Video Privacy Protection Act (“VPPA”), a 1988 statute that was enacted in the era of video tape rentals and Blockbuster video stores, remains relevant, and a recent decision by the Second Circuit has added more layers to its never-fading legacy.
Yesterday, the Second Circuit vacated the district court’s ruling in Salazar v. National Basketball Association, No. 22-07935, 2023 WL 5016968, (S.D.N.Y. Aug. 7, 2023), and remanded the case for further proceedings. The Second Circuit held that the district court erred in ruling that Salazar had failed to plausibly plead that he was a “consumer” under the VPPA. The court agreed that plaintiff had sufficiently pled standing and alleged that he was a “subscriber of goods or services” from the NBA. See Salazar v. National Basketball Association, Docket No. 23-01147 (2d Cir. Oct. 15, 2024).
The Southern District of New York had ruled that subscribing to the NBA’s newsletter did not make the plaintiff a consumer of goods or services from a video tape service provider under the VPPA, as there was no connection between the subscription and access to audiovisual materials. The court explained that, to qualify as a “subscriber” under the VPPA, a user must consume audiovisual materials, not just any products or services.
However, the Second Circuit disagreed with the district court’s interpretation of who qualifies as a consumer under the VPPA, stating: “[t]he VPPA’s text, structure, and purpose compel the conclusion that the phrase is not limited to audiovisual ‘goods or services,’ and the NBA’s online newsletter falls within the plain meaning of that phrase” See Salazar v. National Basketball Association, Docket No. 23-01147 (2d Cir. Oct. 15, 2024). The court added that “by offering videos on NBA.com, the NBA became a ‘video tape service provider’ prohibited by the VPPA from disclosing the personally identifiable information of consumers like Salazar.”
Why follow this case? Salazar is one of the few recent VPPA cases to reach the appellate level and is the first case in which the Second Circuit has analyzed the VPPA’s statutory definition of a consumer. Before the Second Circuit’s decision in Salazar, courts in the Second Circuit who considered the issue had been construing the definition of consumer more narrowly, requiring a nexus between the goods or services offered and the provision of audio-visual content. This more narrow reading of the consumer definition in the VPPA was generally more favorable to service providers seeking to have VPPA actions dismissed. The Second Circuit’s decision in Salazar could signal a shift in how the VPPA is interpreted and create a circuit split, as courts in other jurisdictions, including California, have construed the VPPA’s consumer definition more narrowly, requiring a direct nexus between the subscription and the audiovisual content.
As discussed in our previous legal alert, defining the term “consumer” is key in these actions, and failing to plausibly allege that a plaintiff is a “subscriber” is often sufficient to dismiss the case. The VPPA defines “consumer” as a “renter, purchaser, or subscriber of goods or services from a video tape service provider.” Many claims hinge on the definition of “subscriber,” with plaintiffs often arguing that creating an account or subscribing to newsletters automatically grants them that status.
Over the years, courts have developed a substantial body of case law supporting the notion that being a “subscriber” under the VPPA requires a factual nexus between the subscription provided by the defendant and the defendant’s allegedly actionable video content, finding that “a reasonable reader would understand the definition of ‘consumer’ to apply to a renter, purchaser, or subscriber of audiovisual goods or services, and not goods or services at large.” Carter v. Scripps Network, LLC, 2023 WL 3061858, *5 (S.D.N.Y. Apr. 24, 2023). This interpretation has been widely accepted, with many courts reasoning that the definition of “consumer” is tied to “video tape service providers” and the provision of audiovisual materials. See e.g., Tawam v. Feld Entertainment Inc., No. 23-cv-357-WQH-JLB, 2023 WL 5599007, at *5 (S.D. Cal. July 28, 2023), see also Kuzenski v. UPROXX LLC, 2023 WL 8251590, at *4 (C.D. Cal. Nov. 27, 2023); Golden v. NBCUniversal Media, LLC, 2023 WL 5434376, at *11 (S.D.N.Y. Aug. 23, 2023). In these cases the court held that to qualify as a consumer under the VPPA, a person must rent, purchase, or subscribe to audiovisual material, not just any products or services from a video tape service provider.
However, the Second Circuit’s recent decision suggests a broader interpretation of the VPPA’s definition of what constitutes a consumer. The court emphasized the evolving nature of the statute, noting that courts must grapple with how the language applies in today’s increasingly digital world. Interestingly, the Sixth Circuit is currently considering the very same question regarding the interpretation of “consumer” in an appeal from yet another case filed by Mr. Salazar that was dismissed. See Salazar v. Paramount Glob., 683 F. Supp. 3d 727 (M.D. Tenn. 2023). The case was appealed from the Middle District of Tennessee and the Sixth Circuit held oral argument in that case last June. See Salazar v. Paramount Glob., Docket No. 23-5748 (6th Cir.).
In light of the Second Circuit’s decision and with the Sixth Circuit considering the same legal issues, it remains to be seen how courts will further interpret the purpose of the statute and how far the VPPA will stretch beyond video cassettes and similar technologies originally intended to cover “laser discs, open-reel movies, and CDI technologies.” See S. Rep. No. 100-599, at 5 (1988), reprinted in 1988 U.S.C.C.A.N. 4342.