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Emerging Trends: Renewed Wave of Video Privacy Class Actions

Recent months have seen a growing trend of data privacy class actions asserting claims for alleged violations of federal and state video privacy laws.  In this year alone, plaintiffs have filed dozens of new class actions in courts across the country asserting claims under the federal Video Privacy Protection Act (“VPPA”), Michigan’s Preservation of Personal Privacy Act (“MPPPA”), and New York’s Video Consumer Privacy Act (“NYVCPA”).

Congress passed the VPPA in 1988 after a Supreme Court nominee’s video tape rental history was published during the nomination process.  The Michigan and New York legislatures followed suit, enacting the MPPPA in 1988 and the NYVCPA in 1993 to regulate the disclosure of information identifying which specific individuals obtained which specific written, audio, visual, or other materials, depending on the provision at issue.  Though originally drafted with older technology like books, films, and video cassette tapes in mind, these laws are now being used to challenge how companies conduct business online.

The companies targeted by these lawsuits span a wide array of industries, including technology, news and media, gaming, entertainment, publishing, law, and digital health.  Some have been accused of selling customers’ information to data aggregators and brokers, potentially exposing the affected customers to spam and fraud in addition to compromising their privacy.  Others face litigation over use of third-party technology for purposes of measurement, analytics, and marketing on their own websites, apps, and servers.

These lawsuits raise a host of complex legal and technical questions, which may include, for example:

  • The extent to which a specific statutory provision invoked by the plaintiff can be privately enforced through a civil right of action;
  • Whether the defendant is the type of service provider subject to the law;
  • Whether, within the technological context of the specific case, the data at issue contains personally identifying information within the meaning of the law;
  • The extent to which statutory exceptions or exemptions may apply;
  • Potential limitations on the types of remedies available; and
  • Whether the plaintiff consented to the challenged data practices.

And in the class action context, whether any of these issues are suitable for adjudication on a classwide basis presents a separate set of issues.  In addition, companies should be aware of risks posed by potential remedies like statutory damages, punitive damages, and attorneys’ fees, which can quickly add up to substantial exposure in a class action.

This area of the law is evolving, but as new lawsuits continue to be filed and earlier-filed ones proceed to rulings on the merits, we will see a growing body of case law that will shape how video privacy laws apply to online data practices in the digital age.

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