In refusing to dismiss a lawsuit brought against online service Hulu, a federal judge has ruled that streaming online video is subject to the requirements of the Video Privacy Protection Act. offers previously released and originally developed video content for consumers to view. The class action suit alleged that the company allowed a third-party data analytics company to place tracking identifiers on users’ computers that allowed them to be tracked over long periods of time and across multiple Web sites.

The VPPA prohibits the disclosure of user information absent written consent. The statute defines “video service provider” as an entity engaged in the “rental, sale, or delivery of prerecorded video cassette tapes or similar audiovisual materials.” Hulu argued that the statute’s “similar audiovisual materials” does not encompass streaming media and it therefore could not be held liable for the alleged disclosure of user data.

But U.S. Magistrate Court Judge Laurel Beeler said that “similar audiovisual materials…is a broad phrase designed to include new technologies for prerecorded video content.”

The statute is “about video content, not about how that content was delivered,” she wrote, whether via a brick-and-mortar store selling video cassettes or via the Internet. Online streaming video did not exist when Congress enacted the VPPA in 1988, but lawmakers were concerned with protecting the confidentiality of private information about viewing preferences, regardless of the business model or media format involved, the judge said.

Congress intended that the VPPA’s “protections would retain their force even as technologies evolve,” the court determined, rejecting Hulu’s argument.

To read the order in In re Hulu Privacy Litigation, click here.

Why it matters: The decision is the first to apply the protections of the VPPA to online streaming video, but Judge Beeler noted the case was still in the early stages. In its motion to dismiss, Hulu also argued that the alleged sharing of information with online market research companies, ad networks, and Web analytics companies was all “incident to the ordinary course of [Hulu’s] business” and therefore not covered by the statute. The court said such factual allegations would be resolved at a later stage of litigation and declined to rule on the merits of Hulu’s use of the challenged services to deliver targeted advertisements to users.