A DISCUSSION OF LAW AND JOURNALISM

Cheating Website Double Crosses Customers

Hot Girls

By Andrew Beauclerc

There are dating sites for Jews, Christians, vegetarians, and recently, even married folks. That’s right, AshleyMadison.com is an online “dating” service for married folk looking to have an affair.

And Doriana Silva is suing Ashley Madison, claiming she suffered a wrist injury while working for the website. Ms. Silva didn’t injure her wrist satisfying customers; it was all the typing she did when creating hundreds of fake profiles of sexy women. She asserts that she was paid $34,000 to create these bogus profiles to lure men to the Ashley Madison site in Brazil, and is seeking $20 million in damages. Luckily for Ms. Silva, it doesn’t appear that her wrist has stopped her from enjoying life or riding a jet ski, at least, not according to her Facebook pictures.

LASIS wondered whether Ms. Silva’s claims opened the door for further lawsuits against the website. Could a married man who paid membership fees sue over these fake profiles?

We’re not naïve. We recognize the obstacle to getting a lawsuit of this type off the ground: Finding a plaintiff willing to go public. You know, an unhappily married man who joins this site rather than just getting divorced might not want to announce to the world his disappointment about the potential hookups that were store for him. But let’s assume we’ve overcome that hurdle.

The most likely claim against AshleyMadison.com would be for breach of contract.

When you download music or use a service oriented website you almost always enter into a legally enforceable contract. Courts have held that as with all legal contracts, online contracts require offer and acceptance, or mutual assent. Websites gain a consumer’s assent to their terms of service in one of two ways— a “browsewrap” or “click-through” agreement.

Browsewraps are user agreements that bind users simply because they browse the website.

In January 2012, Zappos was sued over a massive data security breach. Facing a class action, Zappos tried to force all of the lawsuits into arbitration based on the site’s terms of service, which were posted in a link near the bottom of its homepage and contained an arbitration clause within. But the United States District Court for the District of Nevada ruled that Zappos.com customers had not consented to the site’s terms of service, because the browsewrap agreement was illusory. The court did not believe that Zappos’ customers had assented to the terms of service just because there was a link to them.

This is why most websites get customers to give assent through “click-through” agreements. These agreements require users to take some affirmative step to “agree” to the terms, usually by clicking a button.

For example, when you clicked that pesky little “I Agree” button before downloading a song on iTunes, you agreed to Apple’s terms of service. Of course, you don’t read the boilerplate language of most terms of service because they are way too long. And boring. And long. And boring.

You might have agreed to give away your first-born child because you didn’t read the fine print, but who cares— you got the latest Taylor Swift song on your iPod!

Courts have repeatedly upheld click-wrap agreements as sufficient assent to a website’s terms of service. In 2011, the United States District Court for the Northern District of California ruled that users of an online video game application assented to the websites terms of service when the user was presented with, and clicked on, an “Accept” button. Although the terms of service were not presented on the same page as the acceptance button, the user was provided with an opportunity to review the terms of service in the form of a hyperlink immediately under the “Accept” button.

AshleyMadison.com is no different. Before viewing the profiles of your “potential matches,” customers must click a big green “I Agree” button. According to the site, by clicking this button users “acknowledge that by choosing to continue and search now, [they] certify [they are] at least 18 years old and have read and agree to the Ashley Madison Privacy Policy and Terms and Conditions.” Similar to the California district court case, hyperlinks to the terms of service are provided right above the “I Agree” button. By clicking that button you’ve assented to a world of deceit and whatever else hides behind Ashley Madison’s doors.

That’s because, as you might have guessed, somewhere within the eleven pages of Ashley Madison’s terms of service, it states, “some of the profiles posted on the site are associated with our ‘Ashley’s AngelsTM’ and may be fictitious… you acknowledge and agree that the descriptions, pictures and information included in the profiles of our Ashley’s AngelsTM are not associated with a real person, but are provided primarily for your amusement.”

A lawsuit against AshleyMadison.com over it’s fake profiles would likely last as long as the disgruntled husband’s marriage once he files the suit.

As for the jet-skiing Ms. Silva, who claims her wrist is so painful that she’s unable to work, it looks like she might just be looking for a big payday. And if that’s the case, I know a great place to meet rich men—AshleyMadison.com.

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