On behalf of The Marks Law Firm, L.L.C. posted in Divorce on Monday, April 22, 2013
In a previous post, we discussed the legal liability of sights like Ashley Madison that advertise a home for adultery. But what about other social dating sites, or Facebook or even email? Is online worth the risk?
Match.com, eHarmony and other dating sites make themselves an open forum for dating like Ashley Madison, including adultery, with the key difference that they do not advertise their service as home wrecking but love building. So called “mainstream” dating sites discourage individuals from lying in the profiles and do allow members to report on other members’ behavior they consider inappropriate, like saying they are single but finding out they are married. If these sites do not take any steps to screen its members, should they be held responsible for extramarital affairs arranged through their sites? In short, is there really any difference between “mainstream” sites and sites like Ashley Madison other than the latter represent themselves more honestly?
The legal argument would follow those for Ashley Madison — alienation of affections in those eight states that allow the cause of action, and racketeering or false advertising or deceptive business practices in other states, and even negligent infliction of emotional distress. It certainly should be foreseeable that members would lie in their profile in an attempt to have a secretive extramarital affair, and the result of that affair could destroy a marriage, so why not impose a duty on these sites to take some affirmative steps to screen member profiles, at least verify marital status and ban all registered sex offenders? Some have recently sued Match.com for assaults suffered by disaffected dates, including one who stabbed a woman ten times with a butcher knife only eight days after their first meeting. Earlier suits settled when Match.com changed its screening to include verifying no member was a registered sex offender. On the other hand, a Texas judge dismissed a suit by disaffected daters of Match.com who claimed deceptive trade practices in failing to screen out fake or misleading profiles, on the ground they make no such promise in their user agreement. But these user agreements are adhesion contracts, barely read by most members, and may violate public policy. Also, it seems that courts will consider the deceptive advertising as grounds for suit — the site is no different than any other consumer product that promises A but delivers B instead. If the Ab Circle Pro can be held liable, why not Match.com? And we are talking not just about fake profiles, we are talking about using wholesome dating images to sell a product that encourages adultery and the end of marriages, a far more damaging outcome than simple dissatisfaction with the service.
Anyone who does utilize Match.com or other dating sites places himself or herself at risk in a custody proceeding, as anything published on your profile is discoverable and admissible at trial. So, for example, if you advertised yourself as single in profile and emails, or already divorced, you could be portrayed as unfit as a parent because of your penchant for fraud — especially if you post pictures of your children as selling points.
Allegedly tame social media sites like Facebook also put you in potential jeopardy because your postings are visible to a certain audience and indicative of your character or behavior. Do not write or post anything you would not want presented in court. Even email raises flags. Where much of divorce used to be he said/she said battles of words, emails now leave a documented paper trail. Do not send any email you would not want presented in court.
Social media sites should be more responsible where it is reasonable, as in running criminal background checks on members and also their marital status. But they should not have to police beyond that initial screening because most members would not want Match.com reading every one of their emails. Certainly, a happy medium (pun intended) must exist that protects against patent marital harm while still allowing the service to function without fear of too many lawsuits. For sites like Facebook, it remains unclear what duties the law can impose without burdening free speech rights or changing the law that shies away from liability on Internet service providers.
We are in uncharted waters, and liability for damaging a marriage may ensue. On the other hand, any person even thinking that a custody proceeding may be in his or her future should act as if everything done online will be revealed in court.
If you have questions about social media and divorce or custody, contact us — we can help.