Southern District of Florida Adopts “Reasonableness” Standard in VPPA Action

The Video Privacy Protection Act (“VPPA”) penalizes sharing a consumer’s personally identifiable information which can be used to “identify a person as having requested or obtained specific video materials or services from a video tape service provider” without their consent. As discussed in a prior blog, the Supreme Court plans to arguments as to the definition of “consumer” under the VPPA.

I. Exceptions.

As an initial matter, under 18 U.S.C. §2710(b)(2)(A)-(F) of the VPPA, a video tape service provider may disclose personally identifiable information in six circumstances: (1) to the consumers themselves; (2) to any person with the informed written consent of the consumer; (3) to a law enforcement agency pursuant to a valid warrant, subpoena, or court order; (4) to any person if the disclosure is solely of the names and addresses of consumers and if the video tape service provider has provided the consumer with the opportunity prohibit such disclosure; (5) if the disclosure is incident to the ordinary course of business of the video tape service provider; and (6) pursuant to a court order in a civil proceeding, upon a compelling showing of need and after the consumer is given reasonable notice and an opportunity to contest the claim.

However, when these exceptions do not apply, what personally identifiable information cannot be shared by a video tape provider? As the First Circuit remarked in Yershov v. Gannett, “[m]any types of information other than a name can easily identify a person. In turn, Courts of Appeals across the nation have taken two different approaches to determine whether the information identifies a person.

II. Florida Federal Courts Adopted the Reasonableness Standard.

Currently, a circuit split exists between where to apply a “reasonableness” standard or a “ordinary person” standard when determining whether a disclosure sufficiently links a person to a particular video title. The Eleventh Circuit has yet to adopt any standard. However, the Southern District of Florida, in Kueppers v. Zumba Fitness, LLC (“Kueppers”)—a May 2025 decision, applied the “reasonableness” standard. The Kuepper provides advisory precedent for the other district courts in Florida—and provides an indication which standard the Eleventh Circuit may adopt.

i. The “Reasonableness” Standard.

The reasonableness standard interrogates whether a defendant disclosed information which reasonably and foreseeablylikely to reveal the viewing habits of the plaintiff. Under this lighter standard, liability attaches if the intended recipient can connect the numerical ID to the individual. The First Circuit, in Yershov v. Gannett Satellite Info. Network, Inc., illustrated this blurry standard by way of an interesting analogy:

Thus, “[r]evealing a person's social security number to the government, for example, plainly identifies the person. Similarly, when a football referee announces a violation by ‘No. 12 on the offense,’ everyone with a game program knows the name of the player who was flagged.”

Yershov v. Gannett Satellite Info. Network, Inc., 820 F.3d 482, 486 (1st Cir. 2016).

District courts have similarly found that, so long as plaintiff alleges the receiving party can easily ascertain the individual's identity from the disclosed information, plaintiff may state a claim. Across the board, the reasonableness standard provides a notably lower hurdle than the ordinary person standard. As the California Northern District Court in the In re Hulu Privacy Litig. observed, “if an anonymous, unique ID were disclosed to a person who could understand it, that might constitute PII.”

ii. The “Ordinary Person” Standard.

The Third and Ninth Circuits, by contrast, have utilized the more rigorous “ordinary person” standard, noting that the VPPA “applies only to the kind of information that would readily permit an ordinary person to identify a specific individual's video-watching behavior.”

The Second Circuit, in Solomon v. Flipps Media, Inc., adopted the ordinary person standard after analyzing both the reasonableness standard and the ordinary person standard. There, the court reiterated that the VPPA “views disclosure from the perspective of the disclosing party,” and consequently, that “[i]t does not make sense that a video tape service provider's liability would turn on circumstances tside of its control and the level of sophistication of the third party.”

III.         Concluding Thoughts.

With class action lawsuits for claims under the VPPA rising, businesses utilizing subscription services—such as an email newsletter—and who utilize or offer video materials must carefully consider the disclosure of personally identifiable information. For example, the plaintiff in Kueppers addressed a defendant who “intentionally stalled the Meta Pixel,” which transmitted the plaintiff’s Facebook ID together with the URL link to the video at issue.

As courts recognize that “Meta can easily ‘link’ the FID to a specific user.” Moving forward, businesses using pixel trackers must be conscious of which types—and combinations—of personal data they transmit to third-parties. VPPA non-compliance can be costly, with statutory damages reaching $2,500 per violation—particularly, when plead as a class action with numerous class members alleging one or more violations.