Second Circuit Clarifies Video Privacy Protection Act

The U.S. Court of Appeals for the Second Circuit reinstated a proposed class action by Michael Salazar against a professional sports organization on Oct. 15, 2024, alleging violations of the Video Privacy Protection Act (VPPA). The decision clarifies key aspects of the VPPA, specifically regarding what it means to be a “subscriber of goods or services” under the act, and broadens the scope of potential VPPA claims against commercial websites. The Second Circuit’s decision is notable in that it signals a reversal of the recent trend of dismissals of VPPA claims in courts across the country and could trigger a significant increase in VPPA lawsuits. Although organizations have grappled with VPPA claims for several years, this decision is another red flag to organizations to take immediate steps and ensure compliance with privacy laws to mitigate the risks of VPPA claims.

Background

Salazar filed a class action lawsuit against a professional sports organization alleging that it violated the VPPA by disclosing his personal viewing information to a third-party social media provider without his consent. Salazar had signed up for the organization’s free online newsletter and visited the organization’s website, where he watched videos. Salazar alleges that his video viewing history and social media ID were shared with the third party through pixel tracking software embedded in the organization’s website without his permission. The district court dismissed Salazar’s claims largely on the basis that the organization’s online newsletter was not an audiovisual “good or service” and there was no nexus between subscribing to the online newsletter and the provision of video content on the organization’s website. The rationale for the dismissal was similar to what many other courts have cited in dismissing VPPA claims in other jurisdictions.