I Know What You Like to Watch: Video Privacy Protection Act Amended to Simplify Sharing of Video-Viewing Information

On January 10, 2013, President Obama signed into law the Video Privacy Protection Act Amendments Act of 2012, which modernizes the Video Privacy Protection Act to facilitate 21^st-century sharing of video-viewing information.

The VPPA requires the express consent of a consumer before sharing information about his or her video-viewing habits. The VPPA was originally designed to protect customers of brick-and-mortar video rental shops, and did not contemplate today's environment of abundant consumer-driven information sharing. Prior to the amendment, "video tape service providers" (which includes providers of on-line video services) could not share a consumer's viewing history without obtaining that consumers consent each time the information was shared. This made it difficult to share consumer video-viewing information with social media platforms, even if the consumer wanted such sharing to occur.

With the enactment of the VPPA amendment, consumers more readily may provide their consent for the disclosure of their video-viewing information. The amendment does the following:

• It clarifies that consumers may give their consent on-line.
• It allows consumers to give consent in advance, for up to two years or until they revoke their consent, whichever is sooner. It also provides, however, that consumers must have the alternative of consenting on a case-by-case basis.
• It requires that the consent be distinct and separate from any other agreements or policies.
• It requires that the consumer be given a clear and conspicuous opportunity to withdraw his or her consent, either with respect to any and all sharing of their video-viewing information, or on a case-by-case basis (for example, not sharing that they viewed a particular video).

In order to share its consumers' video-viewing information, a video tape service provider will need to take care in complying with the new consent requirements. Among other things, a video tape service provider will need to: (a) draft an appropriate consent, separate from the other agreements and policies governing the video service or site; (b) present consumers with all appropriate information when their consent is requested (such as with whom their information will be shared); (c) give consumers the option to withhold consent, or only provide consent in a given instance; (d) provide consumers a clear method for withdrawing consent; (e) track the expiration and withdrawal of consents; and (f) immediately cease sharing once consents have expired or been withdrawn. Noncompliance could be costly, since the VPPA, in addition to imposing criminal liability, provides for a private cause of action and damages of at least $2,500 per person (plus attorneys fees and costs). Nonetheless, providers of video services have welcomed the VPPA amendment as providing them new opportunities for integrating video-viewing information with social media platforms where few existed previously.

© Arnold & Porter Kaye Scholer LLP 2013 All Rights Reserved. This blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.