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Inside Privacy Updates on Developments in Global Privacy & Data Security from Covington & Burling LLP

Seventh Circuit Strikes VPPA Claim for Retention Damages

Posted in Litigation

The Seventh Circuit held yesterday, in a decision written by Judge Posner, that damages are not available under the Video Privacy Protection Act (“VPPA”) for violations of the statute’s data deletion requirement, only for unlawful disclosures of video-viewing information. 

Subsection (b) of the VPPA prohibits knowing disclosure of personally identifiable information that identifies a person as having requested specific video materials from a video service provider.  Subsection (c) authorizes private actions, including statutory damages of $2,500.  Subsection (e) requires that old records be destroyed “no later than one year from the date the information is no longer necessary for the purpose for which it was collected.”  

Plaintiffs Kevin Sterk and Jiah Chung sued video-kiosk operator Redbox for both unlawful disclosure under subsection (b) and unlawful retention under subsection (e).  Judge Posner, observing that the VPPA “is not well drafted,” held that the more plausible interpretation is that subsection (c) was intended to enforce only the prohibition against disclosure.  Besides looking at the placement of subsection (c) immediately after subsection (b), the court noted that there is no injury and thus no need to award damages if the information, “though not timely destroyed, . . . remained secreted in the video service provider’s files until it was destroyed.”   Even though the statute permits liquidated damages, the court stated that such damages are meant only as a proxy for actual damages: if no injury results, “the only possible estimate of actual damages for violating subsection (e) would be zero.”

According to media reports, plaintiffs’ counsel plans to seek rehearing en banc and will also continue to pursue the disclosure claim against Redbox.