LOS ANGELES — The Free Speech Coalition (FSC) has published guidance on how adult websites can protect themselves in the wake of several consumer class action lawsuits filed against sites for using Google Analytics.
The article follows:
[S]everal adult industry companies have been targeted by consumer class action lawsuits for allegedly violating the Video Privacy Protection Act (VPPA) by using Google Analytics on their websites. This article will give an overview of what the law is, the lawsuits that have been filed, and what your company can do to avoid becoming a target. This information is provided for educational purposes only and does not constitute legal advice.
What is the VPPA?
The VPPA is a U.S. federal law that was enacted in 1988 after Supreme Court nominee Robert Bork’s video rental records were published in a newspaper without his consent. It prohibits companies from sharing information about the videos a consumer has watched if it's combined with personally identifiable information about the person without their consent.In practice, this means that you must get the user's consent if you transmit data to a third party that includes information about the user (name, email address, IP address, customer ID, device ID, etc.) and the video (title, description, subject matter). The law explicitly requires "informed, written consent" collected separately from any other legal or financial agreements. The website must also provide, in a “clear and conspicuous manner,” the opportunity for the “consumer to withdraw [consent] on a case-by-case basis or to withdraw from ongoing disclosures.”
The law authorizes class action lawsuits against violators for actual damages starting at $2,500 per person as well as punitive damages to punish the company.
What the Lawsuits Allege
According to the American Bar Association, there's been a flood of VPPA litigation since 2022 against all manner of websites using marketing tools like Meta pixels and Google Analytics. In the recent cases against adult companies, the plaintiffs filed cookie-cutter complaints alleging that the targeted website "collects and transmits information related to individuals’ use of the Website, including the specific pornographic videos that they watch (the “Sensitive Information”), to third party advertisers, including Alphabet Inc. (“Google”), through the use of surreptitious online tracking tools."In addition to the VPPA allegations, the plaintiffs tack on an assortment of related claims:
- invasion of privacy
- negligence
- breach of implied contract
- unjust enrichment
- violations of federal and California privacy laws
- violations of New York and California business laws
How Companies Can Protect Themselves
[T]he law firms bringing these suits are actively seeking adult website subscribers to join their cases or file new ones. If your website engages in the "rental,sale, or delivery of prerecorded…audio visual materials" and transmits data about the videos your customers are browsing or watching, you should be concerned.
While there is no way to guarantee that your company will not be targeted, experts at the ABA and IAB recommend limiting your risk by ensuring that you have your customers' consent prior to sharing their data with third parties.
According to the law, you must obtain "informed, written consent (including through an electronic means using the Internet)" that is "in a form distinct and separate from any form setting forth other legal or financial obligations of the consumer" – i.e., it cannot simply be incorporated into your site's privacy policy or terms of service.
The law requires that consent must be able to be withdrawn and must be reaffirmed at least every two years. Experts recommend that if you are going to obtain consent (rather than discontinuing use of third party data sharing), you must have a way to record the time and date it was given and automate verification after 24 months.
If you don't want to manage it yourself, there are a variety of products available to help sites comply with the VPPA, GDPR, and other laws – including tools that integrate with Google Analytics and at least one free option.
Remember, it's essential to talk to a legal advisor who can give you advice specific to your business. FSC members seeking a referral can consult our Industry Professional Directory for a list of attorneys who specialize in adult industry issues.
For more information, visit FreeSpeechCoalition.com.