The Second Circuit Court of Appeals upheld the dismissal of a proposed class action against Flipps Media (now Triller TV), ruling that the company did not violate the federal Video Privacy Protection Act (VPPA) by sharing user video-viewing data via tracking pixels. The court concluded that the data shared did not qualify as "personally identifiable information" under the VPPA because it could not be used by an ordinary person to identify an individual or their viewing habits. In other words, the panel found that the statute’s focus supports a reading that only data that an ordinary person could recognize as a video title should be covered. 

This decision aligns the Second Circuit with other courts that apply a stricter "ordinary person" standard for what constitutes identifiable information under the statute. The Second Circuit panel observed that both the Third and Ninth Circuits have interpreted the VPPA’s ban on disclosing personally identifiable information as applying only to data that would allow an average person to easily identify an individual’s video viewing habits. The panel referenced the Third Circuit’s 2016 decision in In re Nickelodeon Consumer Privacy Litigation and the Ninth Circuit’s 2017 ruling in Eichenberger v. ESPN Inc. to support this interpretation. 

There is a growing influx of disputes over whether the disclosure of such data through website tracking pixels violates the VPPA, and the Second Circuit’s decision to join the Third and Ninth Circuit by affirming the dismissal of this case for the reasons set forth in the opinion is a win for companies that qualify as videotape service providers under the VPPA. 

To review the opinion, please see the PDF listed below.