Blog Post | 114 KY. L. J. ONLINE | October 3, 2025
Rewinding the VPPA: Circuits Split Over Who Counts as a Consumer in the Digital Age
By: Azia Meeks, Staff Editor, Vol. 114
In 1988, Congress enacted the Video Privacy Protection Act[1] (“VPPA”), after a reporter obtained a copy of Judge Robert Bork’s videotape rental history and published the information during the Judge’s Supreme Court nomination hearings.[2] Under the Act, “a video tape service provider” who discloses “personally identifiable information concerning any consumer of such provider shall be liable to the aggrieved person”.[3] In the twenty-first century, the Act resurfaced with the emergence of audiovisual content on digital media platforms. While the Act explicitly limits the conduct of “video tape service providers,” and protects the consumers of those providers, a flurry of class action lawsuits in recent years have invoked the Act to argue that it also protects the privacy of consumers when they watch audiovisual content online.[4] No longer applicable to consumers of now-defunct video tape rental stores, the question is whether the Act protects consumers of digital audiovisual content from sites like Facebook, online newspaper publishers, or apps that offer videos. In 2025, the VPPA is once again in the spotlight and at the center of a new body of litigation, with the circuits split on who is considered a consumer under the Act. The Second and Seventh Circuits have correctly adopted a broader interpretation of the Act, which better reflects congressional intent and provides expansive consumer protection.
In Salazar v. Paramount Global, the Sixth Circuit affirmed a dismissal where the plaintiff subscribed to a sports e-newsletter operated by Paramount that linked to third-party videos.[5] The plaintiff alleged that Paramount disclosed his video-viewing activity to third parties in violation of the VPPA.[6] The Plaintiff did not subscribe to the audiovisual content from the provider, so the court concluded that he was not a VPPA “consumer.”[7] The court interpreted the VPPA’s definition of “consumer” to be “any renter, purchaser, or subscriber of goods or services from a video tape service provider”[8] and that the goods or services at issue include audiovisual content from that provider. In other words, a plaintiff is only protected when they subscribe to a service that itself provides video materials. Because the newsletter only linked to third-party videos, it did not qualify.
By contrast, other cases construe the definition of “consumer” more broadly. The Second Circuit in Salazar v. NBA held that a plaintiff who subscribed to the NBA’s digital newsletter qualified as a “consumer,” even though the subscription itself was free and was not for access to audiovisual content.[9] The Seventh Circuit in Gardner v. MeTV held that the VPPA covered subscribers to a television network’s promotional emails.[10] That court reasoned that the Act’s protections extended to any subscription relationship with a provider that offers audiovisual materials, regardless of whether the particular service in question contains a video.[11] Both of these courts consider a “consumer” to include subscribers to any goods or services from a video-tape service provider, even free newsletters or downloaded apps.[12] The result of both holdings implies that the purpose of the VPPA would be undermined by drawing harsh distinctions between audiovisual and non-audiovisual subscriptions offered by the same provider. Under this view, if the provider sells or distributes video content, then all of its subscribers fall within the Act’s reach.
The split between the circuits reveals two different applications of the VPPA. The Sixth Circuit’s more narrow approach emphasizes a literal textual reading of the Act. The result is that the statutory definition of “consumer” is strictly tied to subscriptions involving audiovisual content and avoids the VPPA becoming a catch-all privacy statute. The policy behind the narrower view seems to be the avoidance of never-ending litigation against media companies.
On the other hand, the broader approach, as demonstrated by the Second and Seventh Circuits, highlights the congressional intent behind the Act.[13] Courts that have adopted this view reason that Congress enacted the VPPA to protect consumers from unwarranted disclosures by companies that distribute audiovisual content, even though those companies have evolved in the digital age. As the court in Salazar v. NBA said, “Congress deployed broad language in defining the term ‘consumer,’ showing it did not intend for the VPPA to gather dust next to our VHS tapes. Our modern means of consuming content may be different, but the VPPA's privacy protections remain as robust today as they were in 1988.”[14] The underlying concerns are that if the narrow view is adopted, companies will be able to avoid liability unfairly.
The VPPA was designed to safeguard consumer privacy in an industry where disclosure risks are high. Today, media companies collect enormous amounts of data and use it to build detailed consumer profiles. This is why the broader approach should be applied. Allowing companies to evade the statute simply because a consumer subscribed to an email newsletter rather than a streaming platform elevates form over substance. The VPPA expressly covers “consumers” to “goods or services” from a video tape service provider.[15] Nothing in the statutory language confines those “goods or services” to strictly audiovisual ones or ones that require payment to be considered a consumer.[16] If a company like Paramount profits from both newsletters and video distribution, all of its subscriber relationships should trigger the statute’s protections. Otherwise, similarly situated consumers could receive unequal treatment depending on which entry point they chose to interact with the company.
Ultimately, the VPPA’s revival underscores the continuing relevance of privacy statutes drafted in a pre-Internet era. Far from being obsolete or gathering dust, the Act illustrates how core principles of consumer protection can adapt to evolving technologies. At the forefront, consumer trust in the ever-changing digital landscape depends on robust privacy protections. Courts must weigh consumer protection against the practical concerns of media companies, but in doing so, they should not weaken statutory safeguards. Media companies already have tools to comply with the VPPA, such as obtaining consent or anonymizing disclosures.[17] Broadening the definition of “consumer” ensures that companies remain accountable and that consumers, like you, remain protected.
[1] Video Privacy Protection Act, 18 U.S.C. § 2710 (2012).
[2] S. Rep. No. 100-599, at 5 (1988).
[3] § 2710 (b)(1).
[4] See, e.g., Ellis v. Cartoon Network, Inc., 803 F.3d 1251, 1254 (11th Cir. 2015); In re Hulu Priv. Litig., 86 F. Supp. 3d 1090, 1091 (N.D. Cal. 2015); Mollett v. Netflix, Inc., 795 F.3d 1062, 1063-64 (9th Cir. 2015).
[5] Salazar v. Paramount Glob., 133 F.4th 642, 645 (6th Cir. 2025).
[6] Id.
[7] Id. at 653.
[8] Id. at 651.
[9] Salazar v. Nat’l Basketball Ass’n, 118 F.4th 533, 551-52 (2d Cir. 2024).
[10] Gardner v. MeTV Nat’l Ltd. P’ship, 132 F. 4th 1022, 1025 (7th Cir. 2025).
[11] Id.
[12] Salazar, 118 F.4th at 551-52; Gardner, 132 F.4th at 1025.
[13] Salazar, 118 F.4th at 553.
[14] Id.
[15] 18 U.S.C. § 2710 (a)(1).
[16] Salazar, 118 F.4th at 546.
[17] § 2710 (b)(1).