Recent research indicates that an estimated 40 million people make use of dating websites in their search for a partner. OKCupid, Tinder, Bumble, and Plenty of Fish are some of the better-known dating sites (though of course we shouldn't rule out niche sites like Farmers Only and VeggieDate). Through it all, though, one of the most trusted places for single folk to make a connection has been Match.com.
Match holds a significant market share in the booming online dating industry. Recent statistical data showed the website having 4,288,595 unique hits per month, with a total number of 26,200,000 visits. This outranks the closest listed competitor, Plenty of Fish, by around 1.7 million monthly visitors.
Flashy numbers aside, dating sites have been in the news recently because users aren't usually screened in any way before they sign up, and almost anyone can reach out to others through this medium, which means that people can get hurt. Such sites, Match included, occasionally come under fire because of misuse of their sites' resources for malicious intent.
As a result, there have been several attempts over the past few years for those who have been injured by other users of dating sites such as Match.com to obtain compensation for their injuries through the courts. Until last week, every single lawsuit has been dismissed. That all changed when the 9th Circuit Court of Appeals remanded a dismissed case back to the trial court, where it will have another chance to proceed.
While Grossman Law Offices is ordinarily in the business of getting compensation for injured victims, this decision has disturbing repercussions. If successful, this case might set a precedent that perverts the law from an even-handed tool of justice to an arbitrary cudgel, smashing companies just because they happen to have deep pockets.
The Dangers of Online Dating
It's no secret that there are many negative and downright-scary tales about people getting together through services like OKCupid or Match. First-hand accounts of these bad dates range from simple incompatibility to obsessive stalking and harassment, and in fact escalate all the way to violent crimes such as rape or assault.
In terms of the more minor grievances, most people shrug and chalk it up to bad luck--it's a known gamble that a few jerks may stand in the way of a happy and lasting connection. Victims of the violent dates, however, quite rightly seek legal assistance. There's never an excuse for such behavior, much less in the venue of a simple date.
It's worth drawing the parallel between the stalking, attacks, and other criminal activities that some claim that Match.com is responsible for and similar happenings when people meet at bars, work, and churches. What makes this so troubling is that the same violent behaviors that have occurred since time immemorial have ridden the coattails of technology into the realm of online dating sites.
In many such instances the perpetrators faced significant criminal charges, but occasionally their victims have also sought legal redress from the websites that put them together with their attackers. Despite their wrenching details, these claims have not met with much traction.
Case Study: Beckman v Match.com
The case in question--and the reason I wanted to write about this--involves Mary Kay Beckman, a 46-year-old Match.com user who was paired with suitor Wade Mitchell Ridley, 50, through the site. After dating for a brief interval in September of 2010, the pair split up. In her lawsuit Beckman v Match.com (2013), Beckman alleged that after the breakup Ridley continued to harass her through a series of threatening text messages. In January of 2011, Ridley ambushed Beckman in the garage of her residence and stabbed her ten times. When his knife broke, Ridley repeatedly kicked Beckman in the head.
After the assault, Ridley fled and left Beckman for dead in her garage; she was luckily found in time by emergency responders. She required several surgeries to repair her jaw, replace part of her skull, and preserve her eyesight and hearing. Ridley was caught shortly after the attempted murder; while in custody, he confessed to the murder of another woman, 62-year-old Anne Simenson, a few weeks prior to meeting Beckman. He was imprisoned for 28-70 years for his crimes, and was found dead of an apparent suicide in prison in 2012.
In 2013, Beckman filed a $10 million lawsuit in Nevada's federal district court against Match.com for negligence and deceptive business practices. Quite understandably, she was very dissatisfied with the dating site for pairing her with a violent lunatic. After evaluating her claim, the district court ruled in favor of Match.com, citing Title 47, Section 230 of the United States Code, known as the Communications Decency Act (CDA).
What is the CDA?
The CDA was enacted in 1996 as a reaction to what legislators came to call "The Great Internet Sex Panic of 1995." At the time there were rising concerns about objectionable Internet content during this period--primarily the rise of adult-themed material such as nudity or pornography.
A part of the Telecommunications Act of 1996, the CDA attempted to make provisions for a) the censorship of "indecency and obscenity" on the Internet, and b) service providers' legal liability related to content and information posted by their users.
The indecency portion of the act was aimed toward the protection of minors from objectionable material. Despite the vocal pearl-clutching of its proponents, it was struck down by the Supreme Court in 1997 as part of the landmark case Reno v ACLU, where it was deemed contrary to the rights guaranteed in the First Amendment. Justice John Paul Stevens delivered the opinion of the court:
"...[The CDA] lacks the precision that the First Amendment requires when a statute regulates the content of speech. In order to deny minors access to potentially harmful speech, the CDA effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another."
The second clause of the CDA is more salient to today's discussion. Section 230 of the Act has been interpreted to mean that operators of Internet services are not "publishers" per the letter of the law. This means that unlike publishers, site owners are not legally liable for the words of third parties who use their services.
Keep in mind when reading the Reno v ACLU quote below that the justices' decision was written when the Internet was still in its early adolescence--hence its obsolete terminology:
"Through the use of chat rooms, any person with a phone line can become a town crier with a voice that resonates farther than it could from any soapbox. Through the use of Web pages, mail exploders, and newsgroups, the same individual can become a pamphleteer."
The idea here is that it would be nigh-impossible for a service provider to monitor and censor information in real-time before a user's submitted materials had a chance to reach his online peers. Once in their hands, it would be recirculated in a similar fashion, with potential for exponential growth before there was even a chance to take any administrative action. Section 230 instituted legal separations between the users and their hosts when someone needed to be held liable for Internet content.
This was and is a critical provision for website maintenance. Imagine the legal hell that would result from websites being held liable for the opinions and content presented by their user base. Amazon reviews, user-uploaded Youtube videos, content on forum sites like Reddit...even on Facebook and Twitter you see messes spilling out on people's walls almost daily. These sites do what they can to internally regulate content, but they do it out of a sense of decorum and peace-keeping, not due to federal obligation. If they could be held legally accountable for Uncle Bob's alarmingly bigoted tweets, they'd be bankrupt in no time.
Objections to the CDA
Section 230 of the Communications Decency Act has come under fire on several occasions when Internet users have encountered real-life issues stemming from their online interactions. Dating sites are often the venue of such instances, as a main purpose of the sites is to create opportunities for real-life meetings.
Because of the near-total protection provided to Internet services by 47 U.S.C. § 230, plaintiffs have attempted to get around its provisions by carefully refining their allegations. For instance, Mary Kay Beckman argued in her case that that she wasn't suing Match.com for content posted by Wade Ridley, as that clearly would have fallen within the CDA's scope. Instead, Beckman alleged she was suing Match for failing to protect her from Ridley himself--that the site failed to provide the knowledge she really needed to make an informed decision, and should not have approved and displayed his profile in the first place. This allegation was further emphasized later after Ridley's confession to the murder of Anne Simenson. Further investigation revealed his lengthy criminal history involving battery charges (2001), domestic violence (1999), and attempted suicide by police officer (1992).
Prior plaintiffs have tried similar arguments to get around Section 230 without measurable success. In 2008's Doe v. MySpace Inc., two underage girls met predators on the popular social-networking site. The predators then convinced them to meet offline, at which time they committed sexual crimes against the girls. The plaintiffs' attorneys argued that MySpace should have done more to protect them, but the Fifth Circuit Court disagreed and ruled in favor of the social network. This judgment has more or less been the result of such suits, with few variations, since the passing of the CDA.
A case brought before California's Ninth Circuit Court of Appeals in 2014, Jane Doe No. 14 v. Internet Brands, Inc., DBA Modelmayhem.com, presented a rare exception to the norm. The plaintiff, Jane Doe, alleged that the website Modelmayhem.com and its parent company Internet Brands, Inc. should be held responsible for an event in which she was lured to an alleged photoshoot by predators posing as photographers. Once there, Doe was drugged and raped. Doe held that Internet Brands, Inc. and Modelmayhem.com had a responsibility to warn her of the imminent danger she faced by working with these parties, who were known to be prowling the site for victims.
What makes this case unusual is that the Ninth Circuit overturned the initial dismissal of the case, maintaining that the usual grounds of the CDA did not specifically apply to Doe's case. After reconsidering in early 2015, the Circuit Court once again agreed to hear Doe's claims in May of 2016. If a ruling is found in her favor, it may represent a significant flaw in the armor provided by the CDA--as well as a damaging blow to free speech on the Internet.
Of course, a fundamental difference between the two cases is that Match.com is essentially a site for social interaction, whereas Modelmayhem.com is a professional site for commercial interaction. This is a crucial legal distinction. First, courts have long held that commercial speech does not have the same protections that political speech does. ModelMayhem.com was and is designed to facilitate commerce, not dates.
In addition, part of facilitating commerce is to ensure that those who are taking part in the conversation are actual professionals. For instance, if the Texas Bar Association set up a legal referral website, it would have an obligation to ensure that those who were being sent to lawyers were actually licensed to practice law. If they were allowing just anyone to set up a profile and solicit clients, even non-lawyers, they would be failing in their duty to the public.
The outcome of Doe 14 v Internet Brands may also have a bearing on the status of Mary Kay Beckman's case; if Doe can gain footing in proving a website's liability for the safety of its users, so too may Beckman stand a chance. The Ninth Circuit remanded her claim back to the district court to re-evaluate her "failure to warn" case. Short of proving that Match.com knew about Ridley's past and chose to add him to the user base despite the risks he might pose, it is tough to envision a scenario where Ms. Beckman will successfully hold the dating site liable for damages.
How The Law Views Claims of This Nature
While the actions of these offenders are beyond the pale, it seems unlikely that civil action directed at the service providers initially responsible for uniting them with their victims will go far.
Let me be clear: the actions of these predators deserves the full measure of the law and criminal law is equipped with a galaxy of tools to wield against these monsters. Violent offenses like the ones suffered by these plaintiffs never fail to anger me or any other reasonable person in our country. With all that said, though, it is a significant leap from "holding an individual responsible for his actions" to "foreseeing that an individual might be capable of such actions" and ending at "preventing said individual from posting information as a lure to create opportunity for those actions."
Dating sites, like virtually any publicly-shared forum on the Internet, do not perform extensive background checks on their members, and are not required to. Aside from basic contact information (and possibly payment info if the site is subscription-based), very little is asked of a new member. Detailed information is user-supplied, and the CDA insulates the dating site from any responsibility for that content. The same is true of most other online services. They know they cannot stop someone from signing up; the best they can do is rely on their users to report objectionable content, at which point their internal employees, typically called "moderators," step in to take corrective action. Again, they are not legally required to do any of this, but to maintain their profitability, it is in their interests to remove "trolls" and other agents provocateurs.
Regardless, the Internet handles incalculable amounts of user content every second of every day. The Electronic Frontier Foundation, an organization founded to promote and protect personal liberties and free speech on the Internet, notes that were it not for Section 230 of the CDA, what we currently do with our online time could be radically changed:
Individual Grievance Versus Guaranteed Civil Rights
In the United States, most censure and curation of Internet content is voluntary. People run afoul of the administrative and enforcement arms of their service providers and are subjected to censure, but none of that comes from the government.
What we're really dealing with here is a Constitutional issue; even in the wake of the deplorable acts I've described, undermining the CDA is an attack on the First Amendment. Rather than inventing new rights, the CDA merely clarifies that the First Amendment protections we enjoy, particularly freedom of speech and the press apply to online, just as they do in most other realms of our life.
Further, the CDA was duly passed by elected representatives. These rules were not mandated from some ivory tower, but enacted by the very people in whom the public placed its trust. If modifications are needed to the CDA, then those modifications are a political matter, not a legal one. As such, they should be handled by a political body--in this case, Congress. While courts play a crucial role in both illuminating and guaranteeing our rights, they have crossed a line when they invent new ones that fly in the face of clear legal statutes.
Courts must consider the practical ramifications of interpreting a law in a novel manner. Traditionally, our courts have been quite conservative (in the apolitical, classical sense) in their interpretation of our laws. These laws are in place to guarantee our liberty. They accomplish this task through regular and foreseeable interpretation. Absent judicial temperance, the law transforms from a guarantor of our liberty into a misguided destroyer of freedom.
It's not the Internet itself that matters so much, though I will admit my own increasing reliance on its ones and zeroes. It's the liberties that the Internet gives fuller expression to--at least in the United States, which at the moment is my main concern. My heart absolutely goes out to the victims of these incidents, but in instances of court rulings that would challenge the fundamental liberties enjoyed by every citizen, I have to side with the one that will protect freedom of speech. In these circumstances, that means standing opposite the plaintiffs in these injury claims.