Just a month after Ubisoft successfully dismissed a case against it over alleged Video Privacy Protection Act (VPPA) violations, Bandai Namco Entertainment America (BNEA) is next to be sued in a VPPA class action lawsuit filed on May 7. If the plaintiffs win their case, BNEA would pay at least $2,500 in damages for every person aggrieved by its actions, plus possible punitive damages, likely to all run into the millions of dollars. BNEA did not respond to a request for comment before this article’s publication.
Samuel Jesse Garcia, representing the plaintiffs, brings the case over BNEA’s use of controversial Meta (Facebook) Pixel cookies, which log extensive information about user activities on BNEA’s main website and store site. This information includes Facebook IDs, which can be easily linked to a person’s actual Facebook social media profile, and tracks pages visited, games added to cart, visits to the Checkout page, and orders being placed. This data allows Facebook to gather customer information so companies like BNEA can later direct more targeted advertisements to them across Facebook and Instagram.
The lawsuit would require the plaintiffs to prove that BNEA is a “video tape service provider” that knowingly disclosed information (outside the ordinary course of business) that identifies a consumer having requested or obtained specific video content without their informed, written consent. A consumer includes any renter, purchaser, or subscriber of goods or services. Courts have previously upheld that even game publishers like BNEA are video tape service providers due to the pre-recorded audiovisual nature of games (i.e., cutscenes – Aldana vs. Gamestop), and “informed, written” consent has been previously interpreted to include checkboxes on cookie opt-in/opt-out popups.
The Video Privacy Protection Act also requires this consent to tracking to be obtained via a consent agreement (a “form”) that is distinct and separate from any other form setting out the consumer’s other legal and financial obligations. This consent can be obtained at the time that data is to be disclosed to third parties like Facebook, or obtained in advance for a maximum of two years.
The Video Privacy Protection Act Exists To Protect Consumers From Having Preferences & Sensitive Details Leaked
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The Video Privacy Protection Act was introduced to prevent the disclosure of sensitive details like what videos users were renting or buying, which, understandably, can include content that one would want to keep private. Like video preferences, the plaintiff says games can often reflect “deeply personal interests, preferences, and values.”
Modern video games “frequently contain sophisticated narratives, moral choices, and content addressing sensitive topics such as politics, religion, sexuality, and violence. The specific games a consumer purchases— whether they choose war simulations, fantasy role-playing adventures, child-friendly educational content, or games with mature themes—can reveal intimate details about their personality, moral compass, political leanings, and even psychological profile,” they continue.
They add that BNEA’s alleged disclosure of this information to Facebook is worse still because many of its games involve mature themes and violence. Furthermore, children and teenagers access these sites and are thus “often unaware of sophisticated tracking technologies and unable to provide meaningful informed consent to data collection.“
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While the lawsuit has just gotten underway, Ubisoft managed to have a similar class action lawsuit against it dismissed with prejudice (cannot be refiled with the same claim at that court) only in April. It also used Meta Pixel cookies to track customer data, including Facebook IDs that map to a social media account, and data about games accessed and bought. Nevertheless, the judge sided with Ubisoft, which argued that it clearly sought customers’ consent through a cookie banner, allowing users to opt out of different types of cookies, including targeted advertising cookies. The judge also agreed Ubisoft sought informed, written consent through its privacy policy — which users had to accept to buy games — and provided means to opt out.
Given that informed, written consent must be obtained through a form that is distinct and separate from any other form setting out the consumer’s legal and financial obligations, this raised a point of contention with Ubisoft’s privacy policy. Typically wordy and rife with information other than just sharing data with third parties, the plaintiffs argued that including this in a privacy policy failed the “distinct and separate” benchmark. The judge disagreed and sided with Ubisoft’s argument that a Privacy Policy doesn’t contain consumer obligations, but a company’s disclosures or statements to consumers. Therefore, notifying users of data tracking and how to opt out within the privacy policy was deemed fine.
Ubisoft Ruling Could Be A Legal Band-Aid for Bandai. Yes.
At least on the surface, BNEA’s situation seems very similar to Ubisoft’s. Users are asked to agree to its cookie policy when they first arrive on the site. This policy includes notices of behavior tracking, with Facebook listed among the parties. This may be considered informed and written consent. Users also cannot buy games without signing up and agreeing to the BNEA store’s privacy policy, which states:
BNEA does not share your Personal Data for cross-context behavioral advertising, targeted advertisement, or profiling unless you have intentionally directed BNEA to do so, including by explicitly opting-in to such disclosures via a cookie banner or other similar prompt. BNEA does not knowingly collect, sell, or share Personal Data of children under thirteen (13); collect, sell, disclose or share Sensitive Personal Data (as defined below); or sell Personal Data. Users can opt-in or opt-out of any tracking technologies by reading through the options presented via a cookie banner or a cookie button and selecting their cookie and tracking technology preferences. Users can also update their choices at any time (for example, a website may have a “Cookie Settings” or “Data Privacy” tab or button).
These data tracking lawsuits, which, as the Interactive Advertising Bureau notes, are increasing, ultimately raise an important question about consent. Many users, including children, don’t understand or read lengthy privacy policies, and data sharing notices and pop-ups are often framed in a way that obscures the extent a person can be tracked and advertising profiles can be formed about them, even when they’re logged out of Facebook. While BNEA’s opt-out measures are on the easier side, there’s arguably a fatigue among consumers from the differing forms across websites. Some of these require multiple layers of decision-making, only to request it again on the next visit.
Headquartered in Irvine, California, Bandai Namco Entertainment America is a leading publisher of games in North America. It’s under the Bandai Namco Group, known for developing titles like Tekken and Pac-Man and publishing anime game adaptations of titles like Dragon Ball, Naruto, One Piece, and Gundam games, as well as Elden Ring and Dark Souls.
Source: SAMUEL JESSE GARCIA individually and on behalf of all others similarly situated, Plaintiff, v. BANDAI NAMCO ENTERTAINMENT AMERICA, INC., Defendant.
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