• by Wendy Davis  @wendyndavis, February 21, 2023

The subscription service Patreon can't shake claims that it violated a federal privacy law by allegedly disclosing people's video-viewing information to Facebook, a federal judge has ruled.

The decision -- issued late last week by U.S. District Court Magistrate Joseph Spero in the Northern District of California -- comes in a lawsuit filed last year by four Facebook users who also subscribed to Patreon, a platform that offers subscribers access to work by musicians, video creators, artists and other content producers.

The subscribers -- California residents Brayden Stark, Judd Oostyen, and Maryann Owens, and Massachusetts resident Kevin Black -- alleged in a class-action complaint that Patreon disclosed their identities, along with the online video they accessed, to Facebook via its “Pixel” tracking code.

“Through use of the Facebook Pixel, Patreon discloses to Facebook the full name of each video a user watched, together with the User’s [Facebook id], thus linking users’ viewing content choices and preferences to their Facebook profiles,” the complaint alleged.

The users argued that the alleged disclosures violated the Video Privacy Protection Act -- a 1988 law that prohibits video companies from sharing personally identifiable information about subscribers, renters, or purchasers of videos.

Patreon urged Spero to dismiss the lawsuit at an early stage, arguing that the Video Privacy Protection Act violates the First Amendment.

The company contended that the video privacy law violates free speech principles because it “forbids a broad range of constitutionally protected, non-commercial speech, without being narrowly tailored to advance an interest in privacy.”

Spero rejected that argument for now, but suggested he would revisit it after both sides developed more evidence about whether the video privacy law is too broad.

“Assessing the degree to which consumers expect privacy in the videos they watch, the degree to which such privacy can be secured without regulation, and thus the government’s interest in protecting that privacy through the [Video Privacy Protection Act], would benefit from a factual record as to consumer preferences and their ability to effect such preferences through contract or other private conduct,” he wrote.

He added that more facts would help determine whether the law “is sufficiently narrowly tailored to protect those interests.”

Patreon isn't the only company to face recent claims that it violated the Video Privacy Protection Act by allegedly sharing data with Facebook. Other companies facing similar lawsuits include Gannett, Epoch Times, WebMD, the National Basketball Association, and Paramount.