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  • January 3, 2024
  • By Mitch Eisenberg Alliant SVP, General Counsel and Data Compliance Officer
  • Blog

How Advertisers Can Try to Avoid Getting Stuck in VPPA Limbo with Their CTV and Video Data

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As an industry, we’ve been working hard to reduce the complexity of CTV and video advertising to help brands and agencies seamlessly and effectively reach audiences in these increasingly popular viewing environments. Now, amid all the progress we’ve made, a 35-year-old piece of legislation—the Video Privacy Protection Act (VPPA)—is sparking lawsuits and sowing confusion within the CTV and video ad space.

From a data-driven advertising standpoint, the VPPA isn’t a showstopper. But it is an evolving matter that advertisers should consider as they formulate their omnichannel data strategies and look to ensure they’re not missing out on opportunities within CTV and video. Here’s what you need to know.

VPPA and Why It Matters Now

The VPPA went into effect in 1988—the heyday of videotape rentals—and was essentially a piece of legislation designed to prohibit the disclosure of an individual’s video rental history. (It was passed a year after Supreme Court candidate Robert Bork’s video-viewing habits were leaked to the press.) The law went into effect well before anyone had even conceived of modern streaming services, much less the ad tech and data infrastructures that support them. However, due to the language in recent lawsuits, it’s now being cited within dozens of consumer privacy lawsuits based on how today’s companies share viewership data when consumers view video content posted on websites, apps, and other digital platforms.

Specifically, the VPPA prohibits entities that rent, sell, or deliver prerecorded “video cassette tapes or similar audio-visual materials” from “knowingly disclos[ing], to any person, personally identifiable information concerning any consumer of such provider.” The PII, in this case, is defined as “information which identifies a person as having requested or obtained specific video materials or services from a video tape service provider.”

In short, the VPPA is being used to block companies from sharing data on individuals’ viewing habits. Given the number of lawsuits in play, there’s been no consensus on how courts will handle claims. Thus, it’s time for the advertising industry to move with awareness and caution, while still ensuring their campaigns are being fueled by data that enables the level of targeting and personalization expected in today’s media landscape.

The Safe Approach for Marketers Navigating VPPA

Because the lawsuits leveraging VPPA are trying to fit a square peg into a round hole in terms of data and technology, it’s unlikely there will be clear answers on the legal front for marketers any time soon. Right now, data that directly links an individual to the content they’re watching is being scrutinized most closely. Businesses that get express opt-in consent to share content-level viewership data most likely will be in the clear, but that’s about as much as anyone can say with any certainty at this point.

This doesn’t mean advertisers can’t continue to reach the audiences that matter most to them in CTV and video viewing environments—far from it. A few key things to keep in mind:

Legal Oversight: Always check in with legal and compliance teams to provide valuable oversight when it comes to your company’s use of viewership data. These teams can help you understand how legislation like the VPPA might apply to your specific data applications and targeting models.

Partnerships: Work with those in the know. Your data partners and providers should be talking about VPPA compliancy. More importantly, they should have a plan of action with VPPA in mind.

Data Strategy: The VPPA, at its core, focuses on deterministic data that directly links individuals to content. For advertisers looking to connect with lucrative CTV and video audiences, there are still plenty of data-driven ways to connect with targeted, high-value audiences in these environments. For example, the permissioned signals used to understand viewership of certain content can be used to model high-fidelity probabilistic audiences. These models can then be leveraged, at scale, for highly accurate lookalike targeting.

When legal shakeups over data use arise, such as what we’re witnessing with the VPPA, it behooves marketers to stay on top of developments and adjust as needed. Data partners and agencies should act as advisors in these situations and be able to answer any questions you might have as it relates to the legal implications of the data that powers your campaigns. High-quality audience data offers multiple paths to meeting an advertiser’s goals—but advertisers need a firm understanding of where they stand in order to make the appropriate pivots, and of course deliver great campaigns.

[Editor's note: This is a contributed article from Alliant. Streaming Media accepts vendor bylines based solely on their value to our readers.]

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