Are Online Dating Sites Liable for Members’ Safety?
By Sarah Berent
In the past couple of years, online dating has grown from connoting a not-so-pleasant stigma to a viable, more socially acceptable way to meet a significant other. By now, nearly everyone has at least a second-degree connection to someone who met his soulmate on one of the many available matchmaking sites. According to one source, revenue from online dating sites is growing 10-15% per year and yearly estimates for popular sites Match.com and eharmony.com are a staggering $343 million and $250 million, respectively.
As terrific as the benefits of online dating are, (which of course include being able to shop for a date in your pajamas), there are obvious downsides to the practice, namely the anonymous nature of the Internet. Unfortunately, even the most vigilant online daters can find they weren’t careful enough.
This is exactly what happened last year to L.A.-based entertainment executive Carole Markin, who went out with a man identified as Alan Wurtzel, who she met on Match.com. After an enjoyable first date, the couple went out a second time, and that’s when things turned ugly: Ms. Markin alleges that Mr. Wurtzel sexually assaulted her. Criminal charges against Mr. Wurtzel are currently pending in California.
Ms. Markin filed a class action in L.A. against Match.com on April 13 on behalf of every fee-paying female member since August 2010. The suit claims that the website endangers its women customers by not instituting screening procedures that weed out sexual predators.
Ms. Wurtzel and her lawyer are arguing that dating sites can help prevent the risk of sexual assaults between member matches. A public record search of a city database revealed Mr. Wurtzel to be a six-time sex offender.
After the lawsuit was filed, the dating site announced it will begin cross-referencing members with the National Sex Offender Registry. If Match.com makes good on its announcement and follows through, Ms. Markin says she will drop her lawsuit.
While the media has paid great attention to why or why not screening procedures will effectively reduce the risk of sexual assault in the world of online dating, no one has analyzed whether or not Match.com could actually be held liable for the illegal acts of its members.
A 2003 California case is helpful in answering that question. There, an unidentified person created a false dating profile on Matchmaker.com for actress Christina Carafano, who goes by the name Chase Masterson professionally. The fake profile included Ms. Carafano’s actual name, home address, and an e-mail address that sent out automatic replies with her home phone number. Ms. Carafano discovered the profile after receiving sexually explicit phone messages. She then sued the dating site for invasion of privacy, misappropriation and more.
The 9th Circuit Court of Appeals held that Matchmaker.com was immune from liability due Section 230 of the Communications Decency Act of 1996. This particular section broadly grants immunity to websites that host user-based content. If a website comes within the act’s definition of an “interactive computer service”, then the site is not held accountable for the act of its users. But if the website is an “information content provider” within the meaning of the statute, meaning that the website itself creates or develops the content on the site, then Section 230’s immunity does not apply.
According to the court, Matchmaker.com qualified as an “interactive computer service” and was therefore immune from any liability stemming from the acts of its members. Ms. Carafano tried to argue that the dating site genuinely created its own content pointing to the lengthy questionnaires each member is mandated to fill out. The court did not agree, stating, “no profile has any content until a user actively creates it.”
It follows that Match.com would also be considered an “interactive computer service” under Section 230. Courts have broadly interpreted the Act’s definition of “interactive computer service” because Congress has made clear its intent behind the statute’s enactment: avoiding a chilling effect on free speech. If every website was subject to liability based on the content of its users (in many cases are in the millions), then extensive screening measures would have to be put in place which would unduly restrict speech.
Despite Ms. Markin’s long-shot chance in any attempt to hold Match.com liable for her sexual assault, she still emerges victorious. She has brought public attention to the dangers of online dating and a multi-million dollar company has bowed to her demand to implement screening procedures for registered sex offenders.