On January 10, 2013, President Obama signed into law amendments to the 1988 Video Privacy Protection Act (VPPA) that facilitate social media sharing of video viewing preferences when users consent to disclosure of information via the Internet. The amendments have a number of practical implications for online video providers and their users. The VPPA Amendments permit video streaming services to add opt-in features that will make it much easier for consumers to share their video viewing habits on social media platforms. The VPPA Amendments, however, do not distinguish between social media sharing with friends and sharing with third party advertising or analytics companies. We recommend you get ahead of the curve and create clear distinctions in your data sharing opt-in agreements between sharing data socially versus sharing with third party advertisers and analytics companies.
Impacts of the Amendments on Video Service Providers and their Users
To comply with the amended VPPA, video streaming services must request consent for any personally identifiable data sharing in a separate agreement. In other words, video streaming services cannot obtain valid user consent under the VPPA Amendments via their standard User Agreement or Terms of Service.
Video streaming services must renew their consumers’ consent at least bi-annually and create internal systems to suspend data sharing after the expiration of any advance consent period.
Video streaming services must also provide a conspicuous means for the consumer to withdraw consent either completely or on a case-by-case basis. That way, consumers who, for example, share the movies they are watching with their friends on Facebook can opt-out of sharing the fact that they viewed particular videos that might be personally or politically sensitive with their Facebook friends.
Under the new law, nothing stops a video streaming service from having a “one click fits all” approach where a “yes” click means a consumer is willing to share socially and with third parties, but such a policy should be clearly stated. For example, depending on a service’s policy terms, a user’s interest in Abraham Lincoln: Vampire Hunter or Larry the Cable Guy: Health Inspector can legally be shared not just with her Facebook friends, but advertisers and analytics companies, too. Because the statute provides that consumers must give their “informed, written consent” to sharing, video service providers can minimize the risk of violation by clearly and directly informing their users with whom information will be shared if they click “Yes.” While providing users with separate consent options for social sharing vs. sharing with advertisers and analytics companies is not required by the VPPA Amendments, doing so may make users happy (and therefore make good business sense) by giving users a further measure of control over dissemination of their information. It could also protect against future legislation that may tighten restrictions.
Under the old statute, a “video tape service provider” (which includes Internet video streaming services, like Hulu or Netflix) could disclose personally identifiable information regarding a customer’s viewing habits to “any person with the informed, written consent of the consumer given at the time the disclosure is sought.”
Under the Video Privacy Protection Act Amendments Act of 2012, the consumer’s written consent can now be obtained through electronic means using the Internet, provided that the consent is in a “form separate and distinct from any form setting forth other legal or financial obligations of the consumer.”
The VPPA Amendments also permit the consumer to choose between giving consent to disclosure either: (1) in advance for a set period of time, up to two years or until consent is withdrawn; or (2) each time disclosure is sought (like under the old statute).
Under the VPPA Amendments, the service provider must give the consumer “in a clear and conspicuous manner” the opportunity to withdraw consent either on a case-by-case basis or from ongoing disclosures, at the consumer’s election.