Business Websites Face Unexpected Wave of Class Actions | Fox Rothschild LLP

A recent series of lawsuits against major companies, including a major movie studio, a professional sports league, CNN, HuffingtonPost.com, ESPN and Buzzfeed, have dismissed the federal Video Privacy Protection Act (VPPA) – enacted in 1988 to protect videotape rental histories. – under the projectors.

The plaintiffs in these new actions allege that these companies violated the law when their websites tracked their online video viewing habits and provided the data to companies such as Meta or Google for analysis without their consent. .

This emerging litigation trend should cause companies that use the Meta tracking pixel, Google Analytics, or other technologies that monitor website traffic to review their policies and procedures.

Video Privacy Law Background

In 1987, in the midst of confirmation hearings for United States Supreme Court nominee Justice Robert H. Bork, a reporter published Bork’s videotape rental history. In response, Congress quickly passed the Video Privacy Protection Act (VPPA). Passed in 1988, the VPPA prohibits the knowing disclosure by a videotape service provider of information identifying a person who requested or obtained specific video material or services.

The law didn’t get much attention until 2008-2011, when a series of lawsuits were filed against online video streaming services such as Hulu and Netflix alleging violations of the VPPA. These streaming services lobbied Congress for an amendment to the VPPA to provide an exception so they could obtain consent that would allow the user to choose to share their viewing of video content on third-party social networks.

In response to lobbying, Congress amended the VPPA in 2013 to permit disclosure to third parties if the consumer chooses to provide “informed, written consent (including by electronic means using the Internet)” for such disclosure and “l The user must be given the possibility, in a clear and visible way, to choose to withdraw on a case-by-case basis from the disclosures in progress.

What are the details of the new complaints?

This recent round of lawsuits targets large companies whose websites contain videos for visitors to view, as well as Google Analytics and/or Meta Pixel (Meta is commonly referred to as Facebook) code. The complainants’ viewing of these videos on the websites has been reported to Google and/or Meta for analysis, which can be very helpful in determining the effectiveness of the videos.

The plaintiffs allege that their personal information was inappropriately shared with third parties, namely Google and Meta, without their consent, when their video viewing activity was reported. The complaints also allege violation of state wiretap laws by interception of communications without proper disclosure and consumer approval.

In the case of the professional sports league, the allegations include sending user data to Google-affiliated video platform Anvato. The league’s app transmits Android users’ “advertising ID” associated with their device, their geolocation down to “street level” and an ID associated with the videos they watch.

The allegations against the movie studio, BuzzFeed and ESPN include that they targeted advertising and other content on their websites, collected personally identifiable information, including video viewing activities from subscribers who watched videos on their websites, and shared this data with Meta without their consent. via a tracking pixel. This pixel reveals to Meta which videos individual account holders have watched on these websites.

You’re not ESPN or BuzzFeed…Why should you care?

Almost every company with an online platform uses advertising and marketing pixels, cookies and similar tools. If you believe your business is using the Meta or Google Analytics tracking pixel, you may be unknowingly violating the VPPA. Fines are $2,500 for each individual.

The available options are not desirable for companies that have video, chat functionality, or cookies that track users’ browsing activity (to name some affected technologies), or use Meta Pixel code or Google Analytics. To be clear, the case law remains undecided and this wave of lawsuits is only the beginning. But it seems safe to say that the plaintiffs have a new and possibly compelling argument. It is also clear that if the plaintiffs are correct, a passive agreement buried in the online terms of use is insufficient to meet the standard of “informed written consent (including by electronic means using the internet)” for such disclosure and that “the user must be given the opportunity, in a clear and visible way, to choose to opt out of ongoing disclosures on a case-by-case basis.

This shouldn’t be entirely new territory for marketing departments and web designers, who are increasingly used to consulting privacy-focused attorneys regarding data collection, use, and disclosure. in privacy policies. The same goes for meeting the American with Disabilities Act (ADA) requirements for website accessibility, which has been a hotbed of class action plaintiffs for years.

Add another zone to the list. It quickly becomes clear that companies are exposed to legal and financial risk if their compliance with the VPPA and national wiretapping laws is not properly considered and addressed.

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