Keypoint: The Southern District of New York dismissed a VPPA claim after finding use of the Meta Pixel does not violate the VPPA when used to transmit information about a visitor’s general activity on a webpage, even where that webpage also hosts video.
In June 2022, a plaintiff filed a complaint in the Southern District of New York that alleged the defendants violated the Video Privacy Protection Act (“VPPA”) by using the Meta Pixel. More than eight months later, the court dismissed the complaint after finding the plaintiff failed to state a claim for relief under the VPPA. Taking all the plaintiff’s allegations as true, the court nevertheless found a website that used the Meta Pixel to send information to Meta when a website visitor visited a webpage that contained both video and non-video content did not violate the VPPA.
Originally enacted in response to Supreme Court candidate Robert Bork’s video rental history being released during his nomination, the VPPA prohibits video tape service providers, or anyone who offers “similar services” from disclosing personally identifiable information about what videos an individual watches without the individual first providing informed, written consent. Importantly, the written consent must be in a separate form, apart from any other form that sets out other legal or financial obligations of the individual. 18 U.S.C. § 2710(b)(2)(B)(i). Violators can face statutory damages of $2,500 per breach in addition to other monetary relief and attorneys’ fees. Id. at § 2710(c)(2).
Recent VPPA lawsuits have focused on use of the Meta (née Facebook) Pixel, which Meta explains allows website operators to track visitor activity on their website. Several other courts have addressed similar claims and allowed the litigation to proceed beyond the pleading stage. The South District of New York is one of the top three districts in the nation to most often address claims that modern websites that host video content violate the 1988 VPPA.
In the Southern District of New York’s most recent VPPA decision, Martin v. Meredith Corp., the defendants operate one of the world’s largest online media companies, which includes the popular site People.com. 2023 WL 2118074. Most of the content pages on People.com include a video, and some pages consist solely of videos. Id. at *1. The plaintiff alleged they were an “active subscriber” to People.com and often watched videos on the site. Id. The plaintiff alleged the defendants violated the VPPA when they disclosed information about the plaintiff’s video watching habits on People.com by using the Meta Pixel. Id. at *2.
The court disagreed. Taking the plaintiff’s plausible allegations as true, the court found the complaint “itself shows that the defendants do not disclose information showing that a person has ‘requested or obtained specific video materials or services” because the “version of the Facebook Pixel used on People.com sends only the Facebook ID and the name of the webpage that a user accessed.” Id. at *3. The court explained that simply disclosing the name of a webpage and an associated Facebook ID omitted information necessary for a VPPA violation, including not only whether the webpage contained a video, but the name of the specific video materials and, if there are multiple videos, whether the visitor viewed one or all of them. Id. The court also noted it was possible that a website visitor never even watched the videos and instead merely read the associated article. Id. People.com named its pages differently than the title of the video, thus proving that the conveyed information reflected only what sites the visitor had accessed, not necessarily what video they had viewed. Because the VPPA protects only against disclosing one’s video history, not their reading history, the court dismissed the VPPA claim with prejudice. The court left unresolved whether the Facebook ID “identifies a person” and whether People.com was a “video tape service provider” under the VPPA.
The court’s guidance, reproduced below, is helpful to companies hoping to avoid VPPA claims while still using the Meta Pixel:
A claim under the VPPA requires that the information disclosed identify a person “as having requested or obtained specific video materials or services from a video tape service provider.” 18 U.S.C. § 2710(a)(3). Simply sending a URL of a People.com webpage which may or may not include a video does not show that a person requested or obtained specific video materials or services. And even for webpages including a video, sending the URL does not identify a person as having requested or obtained the video on that page since the person may instead have merely reviewed an article on the page or opened the page and done nothing more.
Companies must therefore carefully consider their implementation of the Meta Pixel and what information they configure the tool to send to Meta or any other third-party.