When online love goes wrong, litigation begins

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As more and more people turn to the Internet to find their soul mate, lawyers believe online dating sites could become breeding grounds for negligence claims.

A pair of recent New York cases has drawn attention to the potential for lawsuits against predators that use the anonymity of the Web to exploit emotionally vulnerable singles. Last month, two women sued a Manhattan fertility specialist — a married father of three who posed as a single man on an online dating site to entice the women into sexual relationships.

In both cases, the doctor’s story was the same — he had been married to the woman in a past life and had searched for her so he could make amends for his poor treatment in their earlier lives.

While the defendant in those cases is an individual, the more likely target — and deeper pockets — in this type of litigation is the online dating businesses themselves.

“This is dangerous terrain for providers,” said Randall Miller, who won a $434,000 verdict last November for a Ukrainian immigrant who was severely beaten by her husband, whom she met through an international online dating service.

Because that case was based on specific federal laws protecting mail-order brides from other countries, it has little direct application to domestic online dating cases.

But it is of some interest because the defense repeatedly tried — and failed — to get the case thrown out based on the argument that all a dating service does is arrange the meeting, and from there the participants are on their own.

“Some companies want to say dating is a buyer beware, personal responsibility thing, just like if you meet someone in a bar,” said Miller.

This argument failed in that case partly because Miller was able to demonstrate that the Web site purported to screen and personally select these men as suitable mates, but failed to do so.

As more sites affirmatively promise to screen their subscribers, experts said that type of argument is likely to become stronger in domestic cases.

It is also unclear how wide the range of successful suits will be. For example, a man sued a Jewish singles Web site in September alleging that JDate.com should be held liable for allowing taunting behavior on its site. The man claimed that another subscriber made sexual remarks to him during an online chat, claimed to work for a large lingerie manufacturer and encouraged him to call her on the phone. When he did, a “taunting” automated message told him he was rejected because he could be “dumb, boring, [be a] weirdo or have bad breath or body odor.”

“The problem with issues involving people’s emotions is we’re going to find [certain types of claims] not filed in the business world are going to be asserted against dating sites,” said Walters.

Background Checks

The online dating site True.com and a number of “safer dating” interest groups are supporting state-level legislation aimed at reducing the dangers of online dating.

Under the bill, which is being considered in six states — California, Florida, Michigan, Ohio, Texas and Virginia — an online dating site would be required to either perform criminal background checks of its users or post a disclosure on its site indicating that it does not screen users. For Web sites that do screen users, the legislation would require them to state the limitations of background checks on the site.

True.com already performs criminal background checks of its users, including a check of whether the individual is married.

According to Terra Gray, vice president of government affairs for the Texas-based company, about 5 percent of the people who attempt to enter a profile are actually married, and another 5 percent are convicted felons, according to their background checks.

Lawyers said that the more online dating sites start performing checks, the higher the standard of care will be in the online dating industry.

“As more and more companies begin to do checks, it’s going to become increasingly clear that there is an established industry standard of care,” said Miller, who practices with Arnold & Porter in Washington, D.C.

Although the pending state legislation would allow a site to disclose that it doesn’t conduct background checks, such a disclosure would be “bad for business,” according to Lawrence G. Walters, who represents Web sites, including online dating sites.

As a result, the legislation will cause most sites to perform checks, he said.

Some attorneys predicted that Web sites could open themselves up to negligent screening lawsuits if they agree to screen users and someone falls through the cracks.

“If a company says it does background checks and it failed to catch something it should have caught, the site would be on the hook for negligence or fraud,” said Miller.

Opponents of the legislation worry that background checks will give online daters a “false sense of security” because no background check is fool-proof, according to Markham Erickson, general counsel for the Washington, D.C., lobby group NetCoalition.com.

“Most databases are not up to date and include only subsets of people,” said Erickson. In addition, people with a record as a juvenile “can have their prior record sealed.”

He also said that someone who registers under a false name or date of birth on the dating site could slip through the background check.

“Just because a user passes a background check doesn’t mean [the users of the site] are threat-free,” said Miller. “Participants still will have to be in a buyers beware situation.”

Miller noted that a background check on the abusive husband in his $434,000 suit would not have turned up any records that would warn of his potential for abuse.

Herb Vest, founder and CEO of True.com, argued that it’s still safer to perform background checks. But he agrees that “if a firm touts that it does background checks, it would be wrong to say that without also disclosing the inherent fallibility of those checks.”

Critics of the proposed statute also worry that an increase in background checking for online dating — especially given the potential for flaws in the process — could mean an influx of lawsuits for negligent screening.

“If any dating service says, ‘Let me introduce you to John Smith. We screened him,’ but he turns out to have a prior protection-from-abuse order, then common law negligence and fraud will put them on the hook,” Miller said.

However, Vest contended that detailed disclosures about the limits of background screening would mitigate liability.

Spell Out The Risks

Whether an online dating site can be successfully sued for negligence depends largely on its ability to draft detailed “terms and conditions” to in-clude on the Web site where users must indicate that they assume the risk of using the site.

The problem is there is no standard checklist to rely on in drafting these disclaimers.

“This is such a new industry so you don’t have precedent out there [for what] terms and conditions have to say. Lawyers are trying to forge new legal ground with the advice they are giving,” said Walters, a partner with Weston, Garrou, DeWitt & Walters.

To protect themselves from litigation, Walters recommends that his clients include detailed “hold harmless” agreements on their online dating sites.

Basically, such an agreement would say that the user “assumed all risks associated with using this site” and spells out the risks.

More detail is better, Walters said, because “plaintiffs’ lawyers will try to find ways to poke holes in it.”

By detail, Walters means that Web sites should specify the kinds of risks people could be subject to, such as the possibility of being hurt or raped, chased by a criminal or ending up with a stalker.

“A site can’t just say, ‘You assume all the risks of using this site,’” he said. “Most Webmasters aren’t going to want to put this on their Web site, but the more you put, the safer it is for avoiding lawsuits.”

If the conditions are carefully drafted and users are forced to agree to them as a condition of using the site, far fewer complaints will reach the courts, according to Walters.

“The plaintiff’s lawyers will pull up the site’s terms and conditions and realize it’s not worth suing,” he said.

Judgment Calls

Dating sites that perform background checks, like True.com, generally bar convicted felons and married individuals from utilizing their services. For Web sites, the hardest question is what to do in situations that aren’t so clear cut.

“Sometimes the Web site has some degree of knowledge that a particular user was problematic, due to reviews or comments about individuals written by other users,” said Walters, in Altamonte Springs, Fla. “Any degree of knowledge they might have had would go against their ability to defend a negligence suit. A Web site may have a duty to eliminate an individual who it knows to be a ‘problem dater.’ Courts are going to have to sort out what these duties are.”

At this point, a Web site needs to have good legal advice and do its best to draw the line.

“Your choice would be to make a decision to eliminate someone or to post all the information and let the other daters make up their own minds,” said Walters, noting that in some circumstances a site might protect itself by removing a “problem” participant.

However, taking on the duty to perform checks and eliminate anyone who could be a threat could come back to haunt an online dating site.

“Once you start investigating and eliminating members you may have undertaken that duty for the purposes of a negligence claim,” Walters said.

Miller and Walters agreed that many sites will try to avoid this duty by posting detailed terms and conditions.