The federal Video Privacy Protection Act (“VPPA”) is one of the most frequently litigated data privacy statutes. This month, a California federal court dismissed VPPA claims brought against Hershey, making clear that VPPA liability does not extend to all websites with playable video clips. Rodriguez v. The Hershey Company, et al., No. 3:23-cv-00398-L-DEB, 2023 WL 6798506 (S.D. Cal. Oct. 12, 2023). Given the prolific number of VPPA cases filed this year, this decision will be persuasive to other website operators named in future filed and pending cases.

First, some background. The VPPA provides for liability for any “video tape service provider who knowingly discloses, to any person, personally identifiable information concerning any consumer of such provider.” 18 U.S.C. § 2710(b)(1). To plead a plausible claim for violation of the VPPA, a plaintiff must show as a threshold matter that a defendant is a “video tape service provider” under the statute.  

In this case, the Court found this baseline requirement was not satisfied, notwithstanding creative pleading by the Plaintiff seeking to allege otherwise. Plaintiff’s Complaint alleged that Defendant Hershey is “an American multinational company and one of the largest chocolate manufacturers in the world”. 

As such, Plaintiff alleged, Defendant’s core business model “involves persuading potential customers to try their products via the use of persuasive marketing videos” and that Defendant “create[s], host[s], and deliver[s] videos” on its website. Plaintiff asserted, Defendant is a “video tape service provider” for purposes of the VPPA and that Defendant violated the VPPA by disclosing Plaintiff’s information for purposes of targeted advertising. 

The Court noted that under the plain language of the VPPA, a “video tape service provider” is “any person[ ] engaged in the business … of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.” Id. § 2710(a)(4). Consistent with other precedent from California district courts, the Court held that “[w]hen used in this context, ‘business’ connotes ‘a particular field of endeavor,’ i.e., a focus of the defendant’s work.” Because the Complaint was devoid of any alleged facts suggesting that the delivery of audiovisual material, regardless of medium, is a focus of Defendant’s business, the Complaint failed to plead a viable VPPA claim. Or, to put it otherwise, Plaintiff’s “allegation that Defendant uses videos to market their product indicates that delivering audiovisual material is ancillary to Defendant’s true business purposes.” (emphasis supplied).

Because VPPA claims filed against website operators have been an area of attention from the plaintiff’s bar in the past couple of years, this case is a useful reminder that VPPA liability does not arise merely because an entity has online video content. Instead, the focus of any website operator’s business must itself directly concern the delivery of audiovisual material. Moreover, the fact that a website operator used online videos to market its products does not suffice to satisfy the VPPA’s requirements.