Paul Egan

Detroit Free Press

LANSING — A Michigan man can’t sue Pandora for violating his privacy by publicly disclosing his musical preferences on social media because the service is free, and the man was therefore not a Pandora customer under state law, the Michigan Supreme Court ruled Wednesday.

Peter Deacon sued Pandora Media in federal court in California in 2011, alleging the company violated Michigan's Video Rental Privacy Act when it divulged his musical preferences on its website and on Facebook.

Pandora allows listeners to set up something similar to a personalized radio station by providing music deemed to match the listener's tastes, based on their song choices and feedback. The service is free, though listeners can pay a fee to enjoy it without commercials.

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Deacon, who could not be reached for comment, created a Pandora account in 2008 and alleged that Pandora, without his consent, disclosed "his full name, listening history, bookmarked artists and bookmarked songs to the public generally, as well as to his friends on the Facebook social network," according to a summary of the case.

He wanted to sue not just for damages for himself, but for other Michigan residents who'd had similar experiences.

Deacon lost in federal court in California but appealed to the U.S. 9th Circuit Court of Appeals, which asked the Michigan Supreme Court to answer a pivotal question in the case: whether Deacon would be considered a Pandora "customer" under Michigan law.

In a unanimous opinion Wednesday written by Justice Stephen Markman, the seven-member court said no.

The court noted that Michigan law provides privacy protection for customers, but defines a "customer" as one who "purchases, rents or borrows" a book or audio or video recording. To meet that definition, Deacon would have had to have, at a minimum, made some form of payment to Pandora, or borrowed something he had to return, and there is no evidence he did either, the court said.

"We're pleased with it," Ann Arbor attorney Jill Wheaton, representing Pandora, said of the ruling.

The ruling could end the lawsuit, though it's possible the 9th Circuit could reject the finding of the Michigan Supreme Court, or that Deacon could appeal to a full panel of the 9th Circuit, or to the U.S. Supreme Court.

Contact Paul Egan: 517-372-8660, pegan@freepress.com or on Twitter @paulegan4