On January 26th, the U.S. Supreme Court granted certiorari to address a circuit split on the scope of the Video Privacy Protection Act (“VPPA”).  The VPPA is a nearly 40-year-old federal statute that has inspired a flood of class actions over the past three years, particularly targeting digital media and entertainment companies with embedded video content.  The Court’s decision in this case could greatly narrow—or expand—the VPPA’s scope, with major commercial consequences considering that the VPPA provides for statutory damages of $2,500 per violation.

What's the Story?

The cert petition was filed by serial VPPA-plaintiff Michael Salazar.  The petition sought review of the Sixth Circuit’s decision in Salazar v. Paramount Global on the question of who is a “consumer” under the VPPA.  Only a “consumer” under the statute may sue—the statute prohibits a “video tape service provider” from knowingly disclosing personally identifiable information “concerning any consumer of such provider.”  18 U.S.C. § 2710(b)(1) (emphasis added).

The Sixth Circuit, and more recently the D.C. Circuit, have adopted a narrower definition of “consumer”; while the Second and Seventh Circuits have adopted a broader definition (the Second Circuit, however, has narrowed the VPPA in other ways). 

In his complaint, Salazar alleged that he subscribed to the newsletter of 247Sports.com, a sports news website owned by Paramount Global.  247Sports.com publishes articles and videos on its website, freely available without a subscription.  Salazar alleged that after he watched videos on 247Sports.com, Facebook’s “Meta pixel” caused his browser to send his Facebook ID and the website URL, which contained the name of the web content, to Facebook—allegedly disclosing Salazar's viewing habits in violation of the VPPA.  The district court granted Paramount’s motion to dismiss, and Salazar appealed.

The Sixth Circuit affirmed dismissal, holding that Salazar was not a “consumer” because he had merely alleged that he subscribed to a digital newsletter, not to video content or other “audio visual materials” as defined by the statute.  Salazar v. Paramount Global, 133 F.4th 642, 653 (6th Cir. 2025), rehearing denied, 2025 WL 1409343 (May 13, 2025).  Salazar, in other words, failed to plausibly allege that “the newsletter itself” was an “audio visual material.”  Id. 

Salazar had argued that the statutory definition of “consumer” is broad.  Under the VPPA, a “consumer” is “any renter, purchaser, or subscriber of goods or services from a video tape service provider,” and a “video tape service provider” is defined as a person “engaged in the business” of “rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”  18 U.S.C. § 2710(a)(1), (4).

But the Sixth Circuit disagreed, reasoning that “the most natural reading” demonstrates that a person is a “consumer” only when he or she subscribes to goods or services “in the nature of” video cassette tapes or similar audio visual materials.  Salazar, 133 F.4th at 650-51.

What Does This Mean?

Courts have taken divergent approaches in construing who is a “consumer” under the VPPA.  The Sixth Circuit's decision, and its more narrow approach that the D.C. Circuit has since joined, stands in direct contrast to decisions from the Second and Seventh Circuits, which allowed VPPA claims to proceed in situations where the “consumer” was a renter, purchaser, or subscriber of any good or service from a video tape service provider—even if not specifically audio visual material.

The VPPA was passed in 1988 in response to a newspaper publishing the video rental history of then-Supreme Court nominee Robert Bork.  The Court’s decision in Salazar v. Paramount Global could either curb VPPA class actions or breath life into this statute, inviting broader theories of liability based on websites and video games that embed video content.  Stay tuned.