Second Circuit VPPA Ruling Narrows Pixel Liability With “Ordinary Person” Standard

Summary

A recent ruling in the Flipps case narrowed VPPA pixel liability in the Second Circuit using the “ordinary person” test. The decision creates a split with other circuits and raises the stakes for businesses using video tracking.

Introduction to the VPPA and Pixel Tracking

The Video Privacy Protection Act (VPPA) was passed in 1988 to prevent disclosure of people’s video rental histories. Today, it is at the center of a wave of lawsuits against companies that use tracking pixels on their websites. Plaintiffs argue that pixels, such as Meta Pixel, share users’ video-viewing information with third parties in violation of the VPPA.

With statutory damages of $2,500 per violation plus potential punitive damages and attorneys’ fees, VPPA litigation has become a favored tool for plaintiffs’ lawyers. A recent Second Circuit Court of Appeals decision in Solomon v. Flipps Media, Inc. may shift the tide by adopting the “ordinary person” standard.

The Flipps case and its impact

In Flipps, the company was accused of using Meta Pixel to send URLs for video pages and embedded Facebook ID numbers to Meta. Plaintiffs claimed this qualified as “personally identifiable information” under the VPPA.

The Second Circuit disagreed. It held that liability depends on whether the data can be understood by an ordinary person to identify someone’s viewing behavior. Since neither the URL strings nor the numeric IDs could reveal viewing history to a regular user, the claim was dismissed.

The decision aligns with other courts narrowing the VPPA and diverges from the First Circuit’s broader interpretation and you can see a summary of the Flipps decision here.

The plaintiff asked the full Second Circuit Court of Appeals to rehear the case (an en banc review), but that request was denied on July 28, 2025. As a next step, the plaintiff may petition the U.S. Supreme Court.

The “Ordinary Person” Standard vs. Broader Tests

The Second Circuit’s ruling joins the Third and Ninth Circuits in applying the ordinary person test. This means data must be inherently understandable without technical expertise to trigger VPPA liability.

By contrast, the First Circuit uses a “reasonable foreseeability” standard, under which liability can apply if a third party could combine the data with other information to identify a viewer. This broader reading makes it easier for plaintiffs to move VPPA cases forward.

This circuit split increases the chances that the official government version of the VPPA will come before the Supreme Court for clarification.

VPPA standards: Ordinary person vs. foreseeability

A critical divide is emerging between how courts interpret the same VPPA language. Here’s a simplified comparison:

This circuit split raises the likelihood of the Supreme Court clarifying the VPPA’s reach, especially as more class-action lawsuits are filed across jurisdictions.

What This Means for Businesses

For companies that host video content online, the Flipps decision highlights several important points:

• Not all pixel data creates VPPA liability. If the transmitted data cannot be understood by an ordinary person, courts may dismiss claims earlier.
• Venue matters. Businesses operating in different circuits face different interpretations of the law.
• Consent remains a critical safeguard. VPPA allows disclosures if written, time-limited, and separate consent is obtained with a clear opt-out option.
• Prepare for ongoing change. With circuits divided, a Supreme Court ruling could reshape the rules nationwide.

## **How Clym Supports VPPA Risk Management**

Clym’s VPPA consent solution provides businesses with tailored tools to address these risks:

• Granular consent flows: Create a distinct consent notice specifically for video tracking.
• Pixel control: Configure banners so pixels fire on video pages only after consent is given.
• Audit records: Store detailed logs of consent and disclosures to support defenses in litigation.
• Dynamic updates: Adapt banners and disclosures quickly as courts and regulators shift standards.

## **Conclusion: What Comes Next for VPPA Litigation**

The Flipps decision narrows VPPA liability in the Second Circuit but deepens the split among federal appeals courts. For businesses, this underscores the importance of implementing structured VPPA consent practices, particularly when using third-party video technologies.

By deploying solutions like Clym’s VPPA consent tools, companies can strengthen their privacy posture, adapt to diverging judicial interpretations, and minimize the risk of class-action exposure.