April 9th, 2015
Court blocks VPPA class action: Problems with VPPA definitions of “consumer” and “provider”
By: Amanda Gayer
With widespread concerns emerging about privacy on the internet, many people have become increasingly cautious about which online services they sign up for, what information they provide to theses services, and what the service’s privacy policy says. Subscribers of online video providers, fortunately, receive some protection from the Video Privacy Protection Act (VPPA), which prohibits video services from disclosing most personal information (other than a customer’s name and address) without the customer’s consent.
But, online video viewers shouldn’t breathe a sigh of relief just yet. On Tuesday April 7th, a New York federal district judge rejected a class action lawsuit under the VPPA because the plaintiff class was not covered by the statute. The named plaintiff, Ethel Austin-Spearman, alleges that when she watched “The Walking Dead” on AMC television network’s online streaming service, AMC collected her personal information and provided it to Facebook without her consent.
Because of the language of the VPPA, only “consumers” are protected. Under the statute, a consumer is defined as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” 18 USCS §2710(a)(1). Ms. Austin-Spearman argued that “consumer” should be interpreted to include anyone who does more than simply visit a website – including viewing a streamed online video.
However, Judge Buchwald rejected this argument and blocked the class action suit. According to her, the plaintiff’s interpretation of “consumer” is too broad. The word implies a relationship greater than unregistered use of the site’s streaming services. This means that anyone who has not signed up for or paid for a video service is not protected by the VPPA. This outcome seems to be consistent with a recent California case against Hulu, another online video provider. In that case, the plaintiff’s success turned in part on the subscription relationship between the plaintiff and Hulu.
Although the judge dismissed the complaint, she gave the plaintiff leave to amend the complaint to include a fact that she had failed to include – that she had provided AMC with personal information when she registered for the company’s Walking Dead newsletter. Judge Buchwald expressed skepticism that this would alter the outcome. Should it?
Under the VPPA, a consumer is “any renter, purchaser, or subscriber of goods or services from a video tape service provider.” If the plaintiff provided personal information by registering for a service (the newsletter) from the provider (AMC), then based on a literal reading of the statute, the plaintiff should be covered.
However, the Judge’s reluctance to acknowledge the validity of such a claim may stem from the fact that the newsletter and the video streaming are two separate services. Although they are services from the same provider, the Judge seems to be reading the statute to mean that the information must be given in relation to the specific service in question – not just any service provided by the provider.
Should the VPPA be read literally, or should it be read to consider AMC’s video streaming and AMC’s newsletter as two distinct providers?
It seems that online consumers, when providing information to a company, assume that that information will be used by the company as a whole, not used by a distinct subdivision (like the newsletter). If consumers understand that they are providing the company as a whole with information, perhaps that information should be protected regardless of which service it was provided for. This reading is supported by a literal reading of the test, and would provide protection that consumers reasonably expect based on the structure of a website like AMC’s.
Despite the judge’s skepticism and the plaintiff’s procedural blunders, this point remains to be argued and decided. Stay tuned.
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