I Know What You Watched Last Summer - Video Privacy Protection Act Creates Risks for All Video Programming Distributors

Lauren Lynch Flick

Posted May 15, 2012

By Lauren Lynch Flick

There has been a recent uptick in class action lawsuits against video programming distributors under the Video Privacy Protection Act. The VPPA was enacted in 1988 in response to the disclosure of the video tape rental records of Supreme Court nominee Robert Bork during his confirmation hearings. Reflecting the era of its passage, the law refers to information regarding "video cassette tapes", but is much broader, requiring those who are involved in renting, selling or distributing "prerecorded video cassette tapes or similar audio visual materials" to discard consumer information after a period of time (generally one year) and to get consumers' consent before disclosing information about an individual's viewing habits.

In this day and age of apps that share the songs individuals listen to and the newspaper articles they read, the VPPA has been cited as a major impediment to similar online sharing regarding video downloads and rentals. Congress has considered legislation that would amend the VPPA to permit social media sharing of an individual's video viewing without requiring that individual's consent on a title by title basis. While it may seem an anachronism to those accustomed to rampant social sharing, the VPPA's requirements, and those of similar state privacy laws, apply to far more than just local video rental stores.

The attached Client Alert discusses a recent California case in which an individual brought a class action lawsuit against Sony. The suit claimed that Sony had retained the history of customers' PlayStation Network movie and video game purchases and rentals, and that it disclosed such information to the new owner of the PlayStation Network when the network was transferred, and that the new owner then disclosed that information to advertisers.

As a review of the Client Alert reveals, any video on demand provider, whether cable, satellite, or online, needs to be knowledgeable of the requirements of the VPPA. The VPPA provides an avenue for individuals to bring class actions on behalf of thousands of affected customers, and to seek actual, liquidated, and/or punitive damages for the violation, as well as legal fees. Because of this, the financial stakes can be quite high for what might be an entirely unintentional violation of consumers' privacy.

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