In the past year, plaintiffs have filed a wave of lawsuits asserting claims under the Video Privacy Protection Act (“VPPA”) in connection with the alleged use of third-party pixels on websites that offer video content. A recent decision establishes the limits of the VPPA’s reach and provides a well-reasoned ground for future motions to dismiss.
In Carroll v. General Mills, Inc., 2:23-cv-01746 (C.D. Cal. June 26, 2023), plaintiffs alleged that their video-viewing activity had been shared with third parties, in purported violation of the VPPA, via pixel code allegedly installed on defendant’s website. The federal court dismissed the lawsuit in an opinion that will have broad impact for other companies.
In Carroll, the VPPA’s “video tape service provider” element was at issue. The VPPA applies only to “video tape service provider[s]” (a/k/a VTSPs), defined as “any person engaged in the business . . . of rental sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” Plaintiffs claimed that General Mills was “in the business” of video delivery through its creation and distribution of online videos to “increase[] its brand presence.” The court found this allegation insufficient to satisfy the VTSP requirement and held that the VPPA “does not cover every company that merely delivers audio visual materials ancillary to its business.” The court stated that a plaintiff seeking to bring a claim under the VPPA must plead facts demonstrating that a defendant’s “particular field of endeavor” is the delivery of audiovisual materials, rather than merely a “peripheral” part of its marketing strategy.
In making clear that posting online videos that are only incidental to a company’s core business is not subject to the VPPA, Carroll supports a strong threshold defense to future VPPA claims.
