The latest decision interpreting the application of the Video Privacy Protection Act in the context of twenty-first century technology provides positive news for manufacturers of free apps.

Enacted in the late 1980s in response to revelations about the video rental history of U.S. Supreme Court nominee Robert H. Bork, the VPPA prohibits a “video tape service provider” from knowingly disclosing to a third party “personally identifiable information concerning any consumer.” Aggrieved consumers can recover actual or liquidated damages of at least $2,500, punitive damages, and attorneys’ fees and costs. A “consumer” is defined as “any renter, purchaser, or subscriber of goods or services from a video tape service provider.”

On several occasions, plaintiffs have attempted to apply the VPPA to more recent technology, with limited success. Courts have rejected suits against defendants including Netflix and ESPN, and even a 2012 amendment to the Act intended to modernize it has had limited impact.

In the most recent effort, Mark Ellis sued The Cartoon Network. Without creating a login account, Ellis downloaded the free app and watched various videos. He claimed the company violated the VPPA by maintaining a record of every video clip or episode he watched and sharing the data with a third-party data analytics company.

Cartoon Network moved to dismiss the suit. Although a federal district court found that Ellis was a “subscriber” for purposes of the statute, it found that the data shared by the defendant was not “personally identifiable information” and threw out the lawsuit. Ellis appealed.

The Eleventh Circuit Court of Appeals affirmed, albeit on different grounds.

The VPPA does not define the term “subscriber” but the court looked to the “ordinary meaning of the term,” using dictionary definitions such as a person “registered to pay for and receive a periodical, service, theater tickets, etc. for a specified period of time.” While the panel noted that payment is not a necessary element of subscription, it is a relevant factor in the analysis.

A subscription “involves some type of commitment, relationship, or association (financial or otherwise) between a person and an entity,” the court explained, that includes some factors such as payment, registration, commitment, or delivery. “Mr. Ellis did not sign up for or establish an account with Cartoon Network, did not provide any personal information to Cartoon Network, did not make any payments to Cartoon Network for use of the CN app, did not become a registered user of Cartoon Network or the CN app, did not receive a Cartoon Network ID, did not establish a Cartoon Network profile, did not sign up for any periodic services or transmissions, and did not make any commitment or establish any relationship that would allow him to have access to exclusive or restricted content.”

Instead, Ellis simply downloaded the app onto his smartphone for free and watched video clips.

“In our view, downloading an app for free and using it to view content at no cost is not enough to make a user of the app a ‘subscriber’ under the VPPA, as there is no ongoing commitment or relationship between the user and the entity which owns and operates the app,” the panel wrote. “Importantly, such a user is free to delete the app without consequences whenever he likes, and never access its content again. The downloading of an app, we think, is the equivalent of adding a particular website to one’s Internet browser as a favorite, allowing quicker access to the website’s content.”

The Eleventh Circuit noted a split among the courts that have considered the issue, with federal courts in Massachusetts and New York reaching a similar conclusion, while judges in California and Georgia federal courts have reached the opposite result.

Given its holding as to the meaning of a “subscriber” under the VPPA, the court declined to address the scope of the statute’s definition of “personally identifiable information.”

To read the opinion in Ellis v. The Cartoon Network, click here.

Why it matters: Consumers continue to persist in efforts to make the VPPA applicable to twenty-first century technology with limited success. The Eleventh Circuit opinion provides something of a road map for app manufacturers to avoid liability under the statute by limiting their relationships with consumers, in part by offering an app at no cost.