August 20, 2012

By Jim Halpert and Kate Lucente

A magistrate judge in the Northern District of California has refused to grant a motion to dismiss a Video Privacy Protection Act (VPPA) putative class action claim brought against video streaming service Hulu.

The August 10 decision in In re Hulu Privacy Litigation holds that the VPPA applies to online video streaming services, such as Hulu, and that even users who did not pay for the service count as “consumers” who may sue under the statute.

If, as the court concluded, a video streaming service is a “video tape service provider” under the Video Privacy Protection Act, unless a relatively narrow range of statutory exceptions applies, the company may not disclose personally identifying viewing information it collects about its users to third parties without first obtaining user consent.

Because the VPPA offers the prospect of statutory damages, companies in the online video distribution business that haven’t already done so should consider:

(1) reviewing their disclosures of customer and subscriber information against the VPPA requirements; and

(2) incorporating appropriately tailored arbitration clauses in and obtaining affirmative consent to the terms of use for the video service.

To learn more, click here to read our full Client Alert on this issue.