Patreon Hits Back at Users’ Privacy Complaint in Tracking Pixel Suit

Defendant Patreon Inc. sought dismissal of accusations that it unlawfully transmitted users’ video watching histories to Facebook in a motion filed late last week. The motion argues that the federal Video Privacy Protection Act (VPPA), which bars disclosure of video rental records, does not apply and is unconstitutional, among other contentions.

Four plaintiffs filed suit in May, alleging that each signed up for both Patreon and Facebook, that they watched videos using Patreon’s website, and that Patreon, through the use of a software tool called Facebook Pixel, transmitted the titles of the videos they watched, along with their Facebook user IDs, to Facebook.

According to the complaint, Patreon never told them it would disclose their viewing histories to third parties, and said that they never consented to such disclosures. The practice is illegal under the VPPA because Patreon qualifies as a “video tape service provider,” and is responsible for keeping users’ video watching preferences private, the complaint said.

In last week’s motion, Patreon said that the law is inapplicable because it is neither “video tape service provider” nor does it deliver “prerecorded video cassette tapes or similar audio visual materials.” Pointing to the VPPA, its legislative history, and text, the company argued that Congress did not intend to penalize online platforms like Patreon under the 1988 law. 

Patreon illustrated the point by noting that in 2022, people can watch videos on almost any website including those f corporations, consulting firms, courts, and legislatures, yet that does not turn them into deliverers of content under the VPPA.

The motion also argued that the VPPA transgresses the First Amendment because it is “substantially overbroad” and subject to strict scrutiny as a content- and speaker based regulation of non-commercial speech. In support, the defendant made light of the fact that the VPPA does not merely prohibit the disclosure of consumers’ video-viewing behavior, but even does so when consumers expressly consent to the disclosure of their video record information. 

On top of that, it imposes a penalty of $2,500 in “liquidated damages” per consumer. The motion said this is an unduly steep fine in view of the fact that the penalty applies even when, as here, the plaintiffs suffered “no actual damages of any kind from the disclosure.”

Counsel for the plaintiffs is Girard Sharp LLP. Patreon is represented by The Norton Law Firm PC.