Privacy & Cybersecurity Law Blog

On October 15, 2024, the U.S. Court of Appeals for the Second Circuit vacated the dismissal of a proposed class action against the National Basketball Association (“Defendant”) under the Video Privacy Protection Act (“VPPA” or “Act”). The court held that Michael Salazar, the named plaintiff, successfully pled that he was a “subscriber of goods or services,” and therefore a covered “consumer,” under the Act where he provided personal information in exchange for access to the Defendant’s online newsletter. The court allowed the case to proceed based on the Defendant’s alleged disclosures of the plaintiff’s video viewing information to Meta via the Facebook Pixel without consent, in violation of the VPPA.

The VPPA, except in limited circumstances, makes it unlawful for a “video tape service provider” (VTSP) (here, allegedly, Defendant) to “knowingly disclose[], to any person, personally identifiable information concerning any consumer of such provider” without written informed consent that meets the VPPA’s requirements. The statute defines “consumer” to mean “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” (emphasis added.) The Act does not define the terms “goods or services” or “subscriber.”

The lower court, in its dismissal of the case, held that the phrase “goods or services” within the VPPA’s definition of “consumer” is limited to audiovisual “goods or services”—which the online newsletter is not—and that signing up for the Defendant’s online newsletter did not make the plaintiff a “subscriber,” and therefore was not a “consumer,” protected by the VPPA. The Second Circuit vacated the lower court ruling, holding that the phrase “goods or services” in the VPPA is not limited to audiovisual goods or services, but also includes the Defendant’s online newsletter. The court found that, by alleging that the plaintiff exchanged personal information in return for periodically receiving the Defendant’s online newsletter, the plaintiff plausibly pled he is a “subscriber” of the newsletter, and therefore a covered “consumer” under the VPPA. The Second Circuit vacated dismissal of the case on this basis and remanded the case to the U.S. District Court for the Southern District of New York for further proceedings.

This development is notable because there currently is a split of authority regarding the definition of “consumer” under the VPPA. In particular, in Salazar v. Paramount Global, a case currently pending appeal in the Sixth Circuit, a lower federal court dismissed a VPPA claim by the same plaintiff as in the Second Circuit, finding that he was not a “subscriber of goods or services,” and thus not a covered “consumer,” under the VPPA where he alleged only that he signed up for a newsletter, and did not allege that he subscribed to audiovisual materials. Similarly, in Gardner v. MeTV, a case currently pending appeal in the Seventh Circuit, a lower federal court dismissed a VPPA claim where the plaintiff did not allege that he was a subscriber of audiovisual materials. It remains to be seen whether these circuit courts of appeal will follow the Second Circuit’s interpretation of “consumer,” which is more permissive to VPPA claims than the one taken in these lower courts.