Are you legally required to conduct background checks on people who join your site? The question seems rather bizarre at first glance, but it is one dating site owners must now ask.
The only websites typically required to screen members are sites devoted to kids that must comply with the Children’s Online Privacy Protection Act. This status may soon change as dating sites face the prospect of being required to screen members for criminal records evidencing physical violence.
A Match.com lawsuit is acting as the spearhead for this issue. The facts are relatively straightforward. Carol Markin signed up with Match.com. She created a profile. She met someone she felt comfortable with, Alan Paul Wurtzel, and went on a date with him. Wurtzel sexually assaulted Markin when he met her. She reported him to the police who arrested Wurtzel. Markin then sued Match.com.
Why sue Match.com? Markin asserted the website should have screened its members for sexual predators. She argued that if the site had taken this step, Wurtzel could not assault her because he would never be a member of the website. His six previous convictions for sexual assault would have appeared in any background check.
There is no currently recognized duty for a dating site to screen its members. However, Markin’s attorney was voicing a very compelling argument. He suggested Match.com was not simply facilitating dating; it was actively driving members to each other. Given this, the fact it matched Markin with a sexual predator was negligent.
The Match.com case never reached court. Instead, the company owning the website caved. Match.com and eHarmony now will voluntarily screen members for sexual predators although it is not entirely clear what the standard will be when checking individuals.
The ultimate question remains, however. Does the Match.com situation create a new duty on the part of dating sites to screen their members for previous criminal conduct? If such an obligation exists, what crimes should they look for when determining if a person should or should not be allowed to become a member? While it is obvious a sexual predator should be kept off the site, what about a conviction for a non-sexual crime? What about a person convicted of sexual harassment?
The unfortunate truth is there is no clear line in the sand on this issue. There is no state or federal statute requiring dating sites to screen their members. Courts are not supposed to be creating new laws out of thin air, but there is little doubt they do it all the time. This appears to be one area where a judge would be receptive to a duty to screen argument.
September 28, 2012
Why am I highlighting this date? The issue of member screening is a hotly contested one and is evolving very quickly. A number of states have legislation on tap that, if approved, could result in dating sites being required to screen members or take other actions. This article is only accurate as of September 28, 2012. After this date, things could change so make sure to ascertain the current state of the law with your attorney before moving forward with a dating site.
All of this raises a rather obvious question when it comes to the web. Are we entering an age of excessive regulation? I believe we are.
From draconian legislative attempts such as the Stop Online Piracy Act to the new burdensome proposed requirements related to the Children’s Online Privacy Protection Act, the creep of government regulation is impossible to ignore. Dating sites are the niche in focus at the moment. Sadly, they will not be the last niche to feel the heavy hand of the courts and government.
Richard A. Chapo, Esq.
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