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At a Glance
- In Salazar, plaintiff Michael Salazar alleges that Paramount disclosed his video-viewing information to Meta through installation of the Meta Pixel on its website 247Sports.com while he was logged into his Facebook account.
- The case is anticipated to be heard during the Supreme Court’s 2026-27 term.
- In the meantime, companies that offer video content — whether tied to any subscription-based service or not—should review their privacy policies and data-sharing practices to ensure compliance with existing law and prepare for the Supreme Court’s forthcoming guidance.
The U.S. Supreme Court recently granted certiorari in Salazar v. Paramount Global, agreeing after two previously denied requests to address a fundamental question regarding the scope of the Video Privacy Protection Act (VPPA): Who is a “consumer”? The Supreme Court’s decision is expected to provide much-needed clarity for digital platforms, news outlets, and other companies that produce video content.
Background
The VPPA was enacted in 1988 in response to concerns over the disclosure of video rental records, stemming from the public disclosure of Supreme Court nominee Robert Bork’s video rental history. The statute prohibits “video tape service providers” from knowingly disclosing personally identifiable information about “consumers.” Considering the VPPA’s statutory penalties of $2,500 per violation, damage awards can present significant liability for businesses.
Despite the statute’s original focus on brick-and-mortar video stores, the modern wave of VPPA litigation targets online platforms, streaming services, and at its broadest, any company with a website that happens to include video content. The expansive nature of contemporary VPPA theories has increased the risks and potential liability for any business that uses video media as one of their offerings. Central to many current cases is the question of whether “consumer” as used in the VPPA applies narrowly to subscribers of video content, or more broadly to anyone who subscribes to any service provided by an entity — even if that service is wholly unrelated to its visual offerings.
The Case before the Supreme Court
In Salazar, plaintiff Michael Salazar alleges that Paramount disclosed his video-viewing information to Meta through installation of the Meta Pixel on its website 247Sports.com while he was logged into his Facebook account. Salazar further alleges that he was a subscriber to 247Sports’s online newsletter, and accordingly, that he is protected by VPPA. Judge Eli J. Richardson of the Middle District of Tennessee dismissed the case, finding that Salazar was not a “consumer” simply by virtue of his newsletter subscription and that to hold otherwise would “lead to an unreasonable interpretation of the statute” where “the plaintiff’s interaction with the website . . . has nothing to do with video content.”
Salazar appealed to the Sixth Circuit, which affirmed Judge Richardson’s decision. It explicitly disagreed with decisions of the Second and Seventh Circuits in Salazar v. National Basketball Association and Gardner v. MeTV National Limited Partnership, respectively, which held that the term “consumer” includes renters, purchasers, or subscribers of any goods or services produced by a company. Instead, the Sixth Circuit joined the D.C. Circuit, which recently held in Pileggi v. Washington Newspaper Publishing Co. that a plaintiff must allege they “purchased, rented, or subscribed to a video cassette tape or similar audio-visual good or service” to state a claim under the VPPA.
Looking Ahead
Oral argument has not yet been scheduled, but the case is anticipated to be heard during the Supreme Court’s 2026-27 term.
In the meantime, companies that offer video content — whether tied to any subscription-based service or not—should review their privacy policies and data-sharing practices to ensure compliance with existing law and prepare for the Supreme Court’s forthcoming guidance.
For More Information
Faegre Drinker’s privacy litigation team will continue to track developments as the case progresses. For further information, you may contact the authors.
