On January 10, 2013, President Obama signed into law H.R. 6671, an amendment to the Video Privacy Protection Act of 1988 (VPPA) codified at 18 U.S.C. § 2710, which will permit companies, such as Netflix, to obtain advance consent from consumers to automatically share their movie viewing history on social media sites. While Facebook users have been able to share on an ongoing basis articles that they have read or songs to which they have listened, the VPPA prevented a similar sharing of videos that they have watched. H.R. 6671 allows Netflix to bring its movie sharing Facebook app, available internationally for some time, to its United States subscribers.
As background, the VPPA was enacted in 1988 after a local newspaper released a list of the videos rented by controversial Supreme Court candidate Robert Bork. While the videos Bork favored were hardly salacious, legislators, reacting to what they viewed to be an invasion of Bork’s privacy, quickly passed the VPPA. The VPPA prevents the disclosure of personally identifiable rental records by a “video tape service provider,” without “written consent” from the viewer for each video or without a warrant from the police.
Netflix and other online video companies believed that the VPPA, created in a pre-Internet world, was ambiguous in scope and in need of modernization. Digital distributors were unclear whether online consent qualified as written consent and whether the VPPA even applied to them since “video tape service provider” was defined as any person who dealt with “prerecorded video cassette tapes or similar audio visual material.”
The amendment to the VPPA gives companies the right to obtain advance consent, including electronic consent, from consumers for the ongoing sharing of their video rental information. Consent can be given (i) at the time disclosure is sought, or (ii) for a period not to exceed 2 years or until consent is withdrawn. The law also requires that service providers present the opportunity “in a clear and conspicuous manner, for the consumer to with-draw on a case-by-case basis or with-draw from ongoing disclosures.” H.R. 6671
For those eager to effortlessly share their viewing tastes via social media, Netflix anticipates launching its social media apps in the United States within the year. As for consumers who would like to keep their Facebook friends privy to their love of foreign films, while keeping their Molly Ringwald viewing habit under wraps, the safeguards provided for in H.R. 6671 should allow for just that.