Reasonable Foreseeability and Ordinary Person Compete Under VPPA, Lawyer Says
The majority of courts have adopted the ordinary person standard when ruling on Video Privacy Protection Act (VPPA) cases, though reasonable foreseeability has found favor with a few courts too, said a privacy lawyer on The Consumer Finance Podcast Thursday.
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The ordinary person standard asks: “Could an ordinary person actually understand that a video that a user watched was being disclosed to a third party?” Troutman's Rob Jenkin asked on the podcast. Courts applying that standard often “look at the code and the tracking technology” and say, “'It's a bunch of letters, numbers and information,'” and the average person “would not be able to decipher the identity of the person who visited the website or the video they watched.”
Several courts have recently gone this route, including the 2nd U.S. Circuit Court of Appeals in Solomon v. Flipps Media (see 2505010046) and the U.S. District Court for Southern New York in Zachary Joiner vs. NHL (see 2509020063).
On the flip side, the reasonable foreseeability standard asks: "Did the company ... using the tracking technology reasonably foresee that" the company on the receiving end of the transmitted information "would be able to understand and figure out who the person is and what video they watched?” Jenkin said.
“They look completely past the code,” he added, and instead consider whether it was "foreseeable that the marketing company would be able to determine the identity of the person who visited the website in the video they watched.”
Jenkin said a Supreme Court ruling on the standards would be interesting and widely impact future VPPA cases, comparing the ordinary person standard to a “death knell to this litigation.” Conversely, adopting the reasonable foreseeability standard would open the door to a flood of litigation.