Are You a VPPA Video Tape Service Provider?

Embedding Video on Your Site Does Not Make You a VPPA Video Tape Service Provider

Salazar v. Paramount Global, now before the Supreme Court,¹ resolves only one element of a multi-element statute. It is not the element that determines whether the Video Privacy Protection Act (VPPA) applies to your email marketing program. If Salazar wins, the case will determine who can file a lawsuit under the law. But, before anyone reaches the question the Court is deciding, your organization first has to qualify as a “video tape service provider” under 18 U.S.C. § 2710(a)(4). Most businesses running email marketing programs do not, even if they use video in their campaigns.

The Salazar Question Is Narrower Than Some Coverage Suggests

Michael Salazar subscribed to an email newsletter operated by 247Sports.com, a Paramount Global property. While logged into Facebook, he watched videos on the site that he claims he accessed after viewing the newsletter. Paramount had installed Meta’s tracking pixel, which transmitted his Facebook ID and video-viewing history to Meta without his consent. He sued under the VPPA.

The question before the Court is whether the VPPA’s definition of “consumer”² covers someone who subscribed only to a newsletter, not to a video product. The Second and Seventh Circuits held that it does. The Sixth Circuit held that it does not. The Supreme Court agreed to resolve that difference of opinion. This is important because only a “consumer” has standing to bring a lawsuit under the VPPA’s private right of action provision.³

Some of Salazar‘s coverage might lead you to believe that all you need to do is host a video on your website and allow people to sign up for your newsletter in order to be in danger of being sued by class action plaintiffs’ lawyers. But Paramount’s status as a “video tape service provider” was never in dispute. It conceded the point all the way down at the district court. That court accepted that concession and moved on, leaving the threshold question entirely unaddressed. For one of the world’s largest audiovisual content companies, the concession was unremarkable. But if you are a brand running an email marketing campaign, you absolutely should not read too much into that.

Most Businesses That Use Video Are Not VPPA Service Providers

The statute defines “video tape service provider” as “any person, engaged in the business, in or affecting interstate or foreign commerce, of rental, sale, or delivery of prerecorded video cassette tapes or similar audio visual materials.”⁴ “Engaged in the business” is the operative phrase, and courts have given it real content.

In Carroll v. General Mills, Inc.,⁵ a California district court dismissed a VPPA class action because General Mills used videos to build brand presence. The court considered this peripheral marketing activity, not its “field of endeavor.” The court held that the VPPA does not cover every company that merely delivers audiovisual materials ancillary to its business. A plaintiff must plead that video delivery is the defendant’s “particular field of endeavor.”⁶

The definition’s “prerecorded” modifier provides one further boundary: at least one district court has held that the word does a lot of work and the VPPA applies only to “prerecorded video cassette tapes or similar audio visual materials.”⁷ So, companies whose video content is exclusively live-streamed may fall entirely outside the definition.

Before You Worry About Salazar

Whether your organization clears the service provider threshold depends on facts your privacy counsel is best positioned to evaluate. They will look at what your business actually does, how it delivers content, and how it positions itself in the market. That analysis comes before anything in Salazar becomes relevant to you. If counsel concludes your organization does not qualify, the case is not your problem. If it does, the consumer definition question and the pixel consent architecture that follows are worth addressing carefully.

Footnotes

1. Salazar v. Paramount Global, d/b/a 247Sports, No. 25-459 (U.S. cert. granted Jan. 26, 2026), https://www.supremecourt.gov/docket/docketfiles/html/public/25-459.html. ↩︎
2. 18 U.S.C. § 2710(a)(1) (“any renter, purchaser, or subscriber of goods or services from a video tape service provider”). ↩︎
3. 18 U.S.C. § 2710(b)(1), (c). ↩︎
4. 18 U.S.C. § 2710(a)(4). ↩︎
5. Carroll v. General Mills, Inc., 2:23-cv-01746, (C.D. Cal.) ↩︎
6. Id., ECF No. 36 at 6-7. ↩︎
7. Louth v. NFL Enterprises LLC, 2022 WL 4130866, at *4 (D.R.I. Sept. 12, 2022). ↩︎

This post does not constitute legal advice. Questions about your organization’s specific exposure under the VPPA should be directed to qualified legal counsel.