Could Apps Like Tinder be Held Liable for Leading to a Bad Date . . . or Worse?
Photo Credit: Omar Bariffi, “A hole in the water” - CC BY 2.0 Generic
A case adjudicated by the Ninth Circuit last month, Beckman v. Match.com, LLC (Beckman), demonstrates how intermediary liability, tort law, and contract law can come together to produce surprising results. This post focuses on Beckman and its implications, importantly, potential liability where internet law does not necessarily immunize a company against claims of failure to warn of potential harm from using the platform or connecting with people on the platform.
The Case
In Beckman, the plaintiff had been attacked by a man she met on Match.com, a dating website owned by the defendant, Match.com, LLC (“Match” or “Site”). In 2010, the plaintiff had set up an online profile on Match. She met a man through the Site, and the two went on a date. They had dated for approximately 10 days when the plaintiff ended the relationship. Thereafter, the man texted the plaintiff a number of harassing messages; she did not respond. A few months later, the man attacked the plaintiff at her home, and she ended up in the hospital for her injuries.
As a result of this attack, the plaintiff filed numerous claims against Match, including negligence (failure to warn) claim. At the district court level in 2013, the court found that Match was immune from these claims based Section 230 of the Communications Decency Act (CDA or CDA 230), particularly because the plaintiff’s claims were based on challenging the man’s (a third-party user) profile publication, not an alleged wrong or failure by Match. Cursorily summarized, CDA 230 provides web-based platforms protections from liability for content a third party publishes on their platform.
Last month, the Ninth Circuit Court of Appeals reversed the lower court’s dismissal of the failure to warn claim and remanded the case back to the district court on that issue. The court ordered the reverse and remand on the failure to warn issue based on Nevada law, as well as the plaintiff’s allegation that “Match had actual knowledge that [the man] had identified and attacked other women using Match’s service prior to his attack on Beckman.” It also determined that the claim was not barred by the CDA.
The court indicated that under Nevada law, where a defendant has actual knowledge of specific harm, it has a duty to warn victims that are known and foreseeable of harms that are known and foreseeable. Applied to Match and the plaintiff, this law suggests that if Match had knowledge that the man who attacked the plaintiff had previously used Match.com to target other women, the company had a duty to warn the plaintiff about the man’s past actions.
The court also considered a similar case, Doe No. 14 v. Internet Brands, Inc., from earlier this year, addressing failure to warn under California law. In that case, the plaintiff used an Internet Brands website to post information about herself as an aspiring model. Using that website, two rapists then invited her to a fake audition, during which they drugged, raped, and recorded her. The plaintiff claimed that Internet Brands knew about the rapists’ activities and “failed towarn . . . users that they were at risk of being victimized.”
Notably, the court in Doe No. 14 emphasized that CDA 230 did not protect Internet Brands because the plaintiff did not “hold Internet Brands liable as a ‘publisher or speaker’ of content someone else posted, [for] Internet Brands’ failure to remove content posted,” or failure to monitor third-party content. Instead, she “attempts to hold Internet Brands liable for failing to warn her about how third parties targeted and lured victims through [the website].” (Emphasis added).
Potential Implications and Considerations
Increased liability -- The case could increase likelihood of liability for companies with services allowing users to connect and communicate with one another, particularly where the company could obtain information about specific harm.
Online user agreements -- Companies may try to beef up terms of use or other online user agreements in efforts to lower the likelihood of liability.
Floodgates -- This could increase number of lawsuits against companies for failure to warn against harm they knew about.
Relevant circumstances -- The scope of specific circumstances requiring a company to warn platform users about specific harm is unclear (although state tort law may inform this inquiry). With respect to Beckman, the public has yet to learn the specific knowledge that Match had and how the company came to know of that information.
Action -- Under circumstances similar to Doe No. 14, companies would need to “post a notice on the website or [inform] users by email what it knew about the activities.” They do not necessarily need to remove or alter user-generated content.
Going forward, companies that facilitate online connections and user-generated content may need to keep an eye out for additional holes being poked into CDA 230 protections.
DISCLAIMER
This blog post is made available for educational purposes, as well as to provide general information and a general understanding of the law and current events, only. It does not provide any legal advice or represent the views of any person or entity.
By using this site you understand that there is no attorney-client relationship between you and Anisha Mangalick. This blog should not be used as a substitute for competent legal advice from a licensed attorney in your state.
