The Free Speech Coalition (FSC) has published new guidance for adult industry platforms and content publishers amid a wave of class action lawsuits alleging violations of the Video Privacy Protection Act (VPPA). The lawsuits specifically target websites that use Google Analytics and other third-party tracking tools to collect and share user data without obtaining explicit consent.

The VPPA, a 1988 federal law originally enacted in response to privacy concerns over video rental records, prohibits the disclosure of viewing information linked to personally identifiable data without “informed, written consent.” In recent months, adult platforms have become a focal point for litigants citing the use of tracking pixels that allegedly transmit sensitive viewing data to platforms like Google and Meta.

According to the FSC, plaintiffs in these lawsuits typically allege:

• Transmission of “sensitive information” about users’ video viewing habits via analytics tools.
• Violations of VPPA, as well as:
  • Invasion of privacy
  • Negligence
  • Breach of implied contract
  • Unjust enrichment
  • Violations of California and New York privacy and business laws

These suits often follow a “cookie-cutter” pattern and may include class action demands seeking statutory damages of $2,500 per person, as well as punitive damages.

Many adult content platforms fall under the law’s definition of entities that “rent, sell, or deliver prerecorded audiovisual materials.” If they track or transmit viewing data connected to user information (like IP address, email, or user ID), they may be liable if they haven’t obtained proper explicit consent.

To mitigate legal risk, FSC and legal experts recommend the following steps:

1. Obtain Valid Consent

• Consent must be informed and written.
• It must be obtained separately from other legal agreements (i.e., not bundled in your Terms of Service or Privacy Policy).
• Consent must be:
  • Clearly explained.
  • Distinct in format.
  • Reaffirmed every 2 years.
  • Withdrawable at any time.

2. Document Consent

• You must record the time and date of consent.
• Maintain logs that prove compliance.
• Consider tools that automate re-consent every 24 months.

3. Use Compliance Tools

• Consider integrating privacy-compliant tools with your analytics system.
• Some third-party tools (including free options) are specifically built to comply with VPPA, GDPR, and CCPA.

4. Review Data Sharing Practices

• Audit your use of Google Analytics, Meta pixels, and other trackers.
• If you are sharing video-related data with third parties, ensure it’s anonymized or properly consented to.

5. Seek Legal Counsel

• The FSC urges all companies to consult with First Amendment and privacy attorneys.
• FSC members can find expert legal contacts in its Industry Professional Directory at freespeechcoalition.com.

As lawsuits mount and as courts increasingly favor VPPA plaintiffs, adult platforms may become high-value targets due to the sensitivity of their content. Even compliant sites may be drawn into litigation over technical nuances.

“There is no foolproof way to avoid being targeted,” FSC warns, “but you can significantly reduce your exposure with clear consent processes and privacy-conscious data practices.”

For more information and ongoing updates, visit the FSC’s official website (freespeechcoalition.com) and consult your legal advisor to review your site’s compliance posture.

You can follow the FSC on X at @FSCarmy.