Old videotape law presents new legal challenge to news websites

Published December 2022

Eric Robinson
By Eric P. Robinson, USC School of Journalism and Mass Communications

An enterprising law firm in New York City is soliciting for plaintiffs to sue various newspapers whose websites allegedly include a “pixel” from Meta Platforms Inc.—the parent of Facebook—that allows Meta to track users’ activity.

Ironically, one of the prominent places that the law firm is advertising is on Facebook.

The ads assert that “Your local newspaper is sharing your personal information,” with some specifying that the information being shared includes the videos that you have watched online. This claim is based on a somewhat convoluted combination of Facebook’s practices and a relatively obscure federal law originally adopted after a newspaper published a list of videos rented by a U.S. Supreme Court nominee.

It has been well-documented—but perhaps conveniently ignored by users—that Facebook combines users’ activity on its platform with data from other sites to compile detailed dossiers about its users, and even former users. This information could include any videos that the user watched either through the Facebook platform or another platform from which Facebook collects information by one of two methods: users who log in to the platform using their Facebook profiles or sites that contain a “pixel,” a bit of programming code which allows Meta to track users’ activities.

Plaintiffs’ lawyers argue that this violates the federal Video Privacy Protection Act, which bars “any person, engaged in the business … of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials” from disclosing “personally identifiable information” of customers without their consent. No actual damages are required to sue over such disclosure, with violations punishable by statutory damages of $2,500 per violation, as well as punitive damages, attorneys’ fees and court costs.

The law was passed in 1988 after an intrepid reporter obtained and published a list of videotapes rented by Supreme Court nominee Robert Bork, whose nomination eventually failed.

While the law was written with videotapes in mind, the law also applies to online and streaming videos. In 2013 Congress amended the law to allow online video sites to automatically opt-in users to sharing such information. But the ability to opt-out of such sharing must be “in a clear and conspicuous manner,” which has been taken by some to mean that it must be separate from a site’s general terms of service.

Several dozen lawsuits have been filed in recent months alleging that sharing of personal information of video viewers and of the videos they watch with sites such as Facebook violates the statute. Several media entities have been named as defendants in these suits, including CNN, Gannett, HuffPost, Forbes Media and HBO. Lawsuits against the Boston Globe and Epoch Times have been allowed to proceed. Lawsuits against National Public Radio, the New York Post, Nexstar Media, and Bloomberg LP were voluntarily dismissed by the plaintiffs, possibly after settlements.

As early as eight years ago, one major law firm was wondering whether the Video Privacy Protection Act was a new “class action bonanza.” More recently, another firm noted that “it is clear that the VPPA will remain a concern for providers of online video content and even those social networking and other platforms with which those providers integrate their offering.” Because of the possibility of large classes of plaintiffs and consequently high awards, another firm observed in November that “companies have reason to watch these VPPA claims closely.”

If a news organization’s website allows logins via Facebook, it clearly may be vulnerable to one of these lawsuits. But whether a website contains a Meta pixel is not as obvious; managers may want to ask whoever developed and maintains their websites. If a website uses either, the news organization should consider the legal risks of doing so.

Eric P. Robinson focuses on media and internet law as associate professor at the USC School of Journalism and Mass Communication and Of Counsel to Fenno Law in Charleston / Mount Pleasant. He has worked in media law for more than 25 years and is admitted to legal practice in New York and New Jersey and before the U.S. Supreme Court. This column is for educational purposes only; it does not constitute legal advice. Any opinions are his own, not necessarily those of his employers.

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