In the wake of an influx of lawsuits alleging violations of the Video Privacy Protection Act (“VPPA”), the Second Circuit has begun to establish itself as a challenging venue for plaintiffs bringing digital privacy lawsuits involving the use of internet tracking tools, such as the Meta Pixel.  We previously reported on this ongoing trend here, after the Second Circuit ruled that personally identifiable information under the VPPA only includes information that would allow an ordinary person—not just sophisticated technology companies—to identify an individual's video-viewing history. Last week, the Second Circuit continued this trend in Hughes v. Nat’l Football League, finding that the decision in Solomon v. Flipps Media Inc. "effectively shut the door" for VPPA tracking pixel claims.” 

In Hughes, the plaintiff alleged that the NFL had violated the VPPA by sharing personally identifiable information with Meta via the Meta Pixel embedded on its website. The plaintiff asserted that a user’s Facebook ID, along with the user’s video viewing history, can be identified by the string of code shared via the Meta Pixel.  After the Southern District of New York granted the NFL’s motion to dismiss the complaint in September of last year, the plaintiff appealed the decision, arguing that Meta receives communications from the Meta Pixel “in a way that is automatically translated into a readable format and is displayed (or is displayable) on a user interface as plain text” and that an ordinary person could plug the code into “ubiquitous internet-based tools like ChatGPT” to “translate the code to reveal the Facebook ID and video title in plain English.” The Court disagreed. 

Reaffirming the adoption of the ordinary person standard in Solomon, the Second Circuit found that none of the plaintiff’s allegations supported a valid claim under the VPPA.  Specifically, the Second Circuit ruled that it was not plausible that an ordinary person would be able to decipher the information shared by the Meta Pixel such that they would be able to identify an individual's video-viewing behavior.  The Court also noted that the existence of tools like ChatGPT, which were also prevalent at the time Solomon was decided, did not alter its analysis in this case. 

This decision represents yet another win for streaming and digital media businesses that utilize standard website analytics and marketing pixels on their websites.  However, the decision in Hughes does not mean that video content providers using website tracking pixels no longer have to concern themselves with potential privacy violations.  There remains a plethora of other avenues for plaintiffs to assert violations of their privacy rights, including through wiretap laws and state privacy statutes targeting similar behavior.  In addition, other circuits, such as the First Circuit, continue to take a broader view of what constitutes personally identifiable information under the VPPA, meaning that similar claims could still be successful in such jurisdictions.  Thus, while the Second Circuit may have “shut the door for Pixel-based VPPA claims”, plaintiffs may simply file these claim in more favorable jurisdictions like the First Circuit.