An increasing number of class action lawsuits are being raised alleging violations of the Video Privacy Protection Act, or VPPA, sharing a common thread which is the use of the Meta pixel on videos.
Volume up on Video Privacy Protection Act litigation
If the class action lawsuits are ringing alarm bells in your organization regarding the use of the Meta pixel, fear not. Privacy Ref has prepared an overview of the VPPA and recent litigations to identify potential concerns and recommended steps to take to avoid fines.
VPPA Overview
The Video Privacy Protection Act is a law enacted in 1988 setting limits on how video tape service providers can disclose certain elements of personally identifiable information.
The gist of the law is that personally identifiable information can be disclosed in only the following scenarios:
- Where there is opt-in consent from the consumer.
- Where the disclosure is incident to the ordinary course of business.
- Where there is opt-out consent from the consumer, with certain data elements restricted.
Where opt-out consent is obtained, the data disclosed may include the name and address of consumers, but it must not identify the title, description, or subject matter of any audio-visual material. If the disclosure is exclusively for marketing purposes, then the subject matter of the audio-visual material may be included.
Scope
Though originally intended to target video rental providers, the definition of a video tape service provider has been extended to website operators offering video content and streaming providers today. A videotape service provider is any person engaged in the business of rental, sale, or delivery of prerecorded video cassette tapes or similar audio-visual materials, or any person to whom disclosure is made under opt-out consent as explained above.
Litigation Trends
The consumers filing lawsuits are primarily concerned with the website operators sharing their information with Meta or Google without their consent.
The Meta pixel was claimed to have shared PageView, ViewContent, microdata, button clicks, VideoAdStart, VideoAdComplete, VideoContentStart, and VideoContentComplete with Meta. In a case against Buzzfeed, the plaintiffs claimed that the data shared with Meta revealed which specific videos were watched. Something troubling to one video watcher in a lawsuit was that the data shared from an HGTV video via the Meta pixel included their Facebook ID if the browser had a saved login, although the law does not restrict the sharing of usernames.
Courts have dismissed a number of VPPA lawsuits, revealing key requirements for a VPPA case to take hold. General Mills had a lawsuit dismissed because they were deemed not to be “in the business of video delivery” and therefore not a video tape service provider. However, a case against Chick-fil-A, which may not fit the typical idea of a video tape service provider, involved a video on a website where the company typically posts holiday videos.
The courts also seem to require that a consumer has subscribed to the website in a way that provides them access to the video. In the previously referenced case against HGTV, the dismissal resulted from the company’s demonstration that the subscription in question didn’t provide exclusive access to the videos associated with the Meta pixel. Other cases met the same fate because the plaintiffs failed to establish a connection with a registration or subscription process. This means that the person alleging the lawsuit only visited a website and viewed free video content without subscribing.
How to Move Forward
Before jumping to the conclusion that your business or marketing model must be changed immediately, it is important to take a step back to determine if the VPPA even applies.
Assess the Applicability of the Law
To understand how this all relates to your business, you need to ask key questions. First, you should determine whether your business is a video tape service provider. This involves asking questions such as, but not limited to:
- Does our business involve posting videos on a public-facing website?
- Are the videos posted a key part of our business?
- Does our website require a subscription or service for website visitors to watch a video?
- Do we share consumer data related to watched videos with third parties?
- Does our business receive disclosures from other videotape service providers?
If you answer “no” to these questions or if providing videos is merely a marketing activity, for example, it’s unlikely that your business is in scope for the VPPA. If the answers are unclear, it may be best to consider and plan for the worst-case scenario being that your business is in scope.
Consider the Potential Cost and Benefits of the Meta Pixel
Even if the answers to the questions above are yes, it may not be necessary to remove the Meta pixel from the videos posted on your company’s website, although it may be something for your business to consider, if possible. Where it’s likely for a consumer to potentially file litigation, even if you’re certain that your business can make a strong case for dismissal, the cost of legal services could outweigh the benefits of sharing data with Meta.
Perhaps the way to continue the practice of sharing data via the Meta pixel is to collect opt-in consent to do so. It may require convincing leadership or decision-makers that the loss of revenue from the sharing of data is worth the saved costs of potential litigation. The Boston Globe $4 million settlement could be a good example to reference.
If the cost in lost marketing revenue from opt-in consent is too high, then the individual details shared with Meta need to be scrutinized to ensure that they don’t reveal the title, description, or subject matter of audio-visual materials.
Don’t Try to Forge a New Path
A concept to be mindful of when it comes to the law is called case or common law. This refers to following established precedents by previous courts. Where class action lawsuits tend to follow a pattern, courts will do the same thing as they have done in previous cases. The chances of successfully pursuing a new VPPA path are not promising.
Pursuing the Meta pixel data disclosure as a disclosure that is “incident to the ordinary course of business” is not recommended. There was a case against Fandom where this was argued by the defense, but it ultimately failed. Ignoring the potential for VPPA violations and litigation is also inadvisable.
Need Expert Guidance?
If your business requires assistance with compliance with the VPPA, our team at Privacy Ref is here to help. Please contact us at info@privacyref.com for expert guidance and support.