Over-the-Top and the Value of Data Privacy

[Commentary] Internet-based over-the-top and authenticated video distribution arrangements enable data collection. This data is a critical business asset because it allows programmers and distributors to improve their services and deliver more relevant ads by better understanding who is watching their programming, when and how they watch it, and -- when combined with other data, including third-party data sources -- viewers’ other interests and characteristics. This data, however, also raises potential business and legal risks. These distribution deals may provide distributors access to data about the traffic and users on the programmer’s digital properties because, in addition to directly distributing a programmer’s content, distributors may authenticate users on the programmer’s own sites and mobile apps.

Moreover, the collection, use and disclosure of this data potentially can implicate various privacy and data security laws. For example, the California Online Privacy Protection Act requires websites and mobile applications to have publicly posted privacy policies; the Video Privacy Protection Act restricts the disclosure of an identified person’s video viewing information; and the Cable Communications Policy Act protects the privacy of cable service subscribers. Given the business opportunities and risks associated with the data collected in connection with over-the-top and authenticated video distribution, it is surprising that data sometimes receives slight attention during the negotiation of such deals.

[Lindsey Tonsager and Robyn Polashuk are partners with international law firm Covington & Burling]