Mixed VPPA Rulings Signal Jurisdictional Uncertainty While ICO Releases Consumer Consent-or-Pay Guidance

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Federal courts issued conflicting interpretations of the Video Privacy Protection Act in late October, creating uncertainty for businesses offering video content alongside other services. Meanwhile, in the UK, the country’s Information Commissioner’s Office released consumer-facing guidance on consent-or-pay models, reinforcing its position that organizations can legitimately fund services through personalized advertising.

Keep reading for a breakdown of the news and my takeaways on both matters.

United States

Two Decisions Demonstrate the Mixed Bag of VPPA Interpretations

Federal judges in the Eastern District of Missouri and the Northern District of California issued contrasting decisions on October 20, interpreting the definition of a “Video Tape Service Provider” under the federal Video Privacy Protection Act. 

The former (case 4:25-cv-00564-CMS) granted a motion to dismiss, finding that Apartments.com was not a video tape service provider, and the latter (25-cv-01097-PCP) denied a motion to dismiss, finding that LinkedIn was a video tape service provider. Both cases involved the use of a Meta pixel, which transmitted information about the plaintiff’s activities on the defendant’s website (including titles of videos the plaintiff viewed) to Meta. The plaintiff in both cases accessed prerecorded video clips through an account on the defendant’s website (3D video apartment tours on apartments.com and LinkedIn Learning courses on LinkedIn.com). 

Both defendants argued, in part, that they do not constitute a “video tape service provider” under the VPPA because they are not “in the business” of delivering prerecorded video cassette tapes or similar audio-visual materials. However, the judges came to different conclusions on that issue. 

TAKEAWAY

While one could argue that the facts in these cases are distinct enough to warrant different conclusions, the judges’ reasoning, more than the facts, reveals the divergence in the jurisdictions’ interpretations. 

The Eastern District of Missouri focused on the word “similar” in the law. It held that “video clips transferred via the Internet have little in common with a physical medium like a video cassette” and therefore are not “similar audio-visual materials.” This interpretation would seemingly exclude all companies from the definition unless they were engaged in the business of delivering videos in a physical medium. The Court further held that, even if the videos were “similar audio-visual materials”, the defendant was not “in the business” of delivering them. Although the Court acknowledged that the prerecorded videos the defendant delivers are “in service of its business”, it did not find that to be enough, because the defendant is “in the business” of connecting house seekers with property owners and managers, not the delivery of prerecorded video materials. 

The Northern District of California, on the other hand, did not even address whether prerecorded video clips constitute “similar audio-visual materials”, skipping directly to an analysis of whether LinkedIn is “in the business” of delivering such videos. On that point, the Court rejected LinkedIn’s argument that it is a professional networking platform that primarily provides services other than video content, holding that it was sufficient if delivery of video was a focus of LinkedIn’s work, even if not an overarching one. In support of this decision, the Court cited precedent from the same district, holding that a complaint states a probable claim where it alleges that the defendant “regularly delivers video content to users and maintains a cache of such content, even if the defendant also offers other services.” This interpretation could seemingly encompass the delivery of a cache of 3D video apartment tours on a website primarily focused on connecting house seekers with property owners. 

Therefore, until the Supreme Court says otherwise, jurisdiction may make all the difference in whether the VPPA applies to a given business.  

ICO Provides Consumer-Facing Guidance on Consent or Pay Models

The UK Information Commissioner’s Office (ICO) published guidance for the public explaining “consent or pay” business models. The guidance explains what a consent or pay model is, how they work, whether they are legal, and user options for withdrawing consent or complaining about noncompliant models. 

TAKEAWAY

The guidance is consistent with more detailed guidance provided to organizations in January 2025. 

Notably, both sets of guidance reflect the ICO’s recognition of the right to conduct and use personalised advertising to fund a business. For example, the consumer-facing guidance makes a point of clarifying that withdrawing consent “does not mean you can access a site or use a service for free” and that the organization can take you back to the original consent or pay choice in such circumstances. 

A LITTLE MORE PRIVACY, IF YOU PLEASE

• Court of Appeal Upholds NOK 65 Million Fine against Grindr for Disclosing Personal Data for Behavioral Advertising Without Valid Consent 
• ICO review of UK websites’ cookie compliance: What you need to know in 2025
• Learn about Amazon Consent Signal (ACS)

A Little Privacy, Please weekly recaps are provided for general, informational purposes only, do not constitute legal advice, and should not be relied upon for legal decision-making. Please consult an attorney to determine how legal updates may impact you or your business.