Love’s Labour’s Lost in Cyberspace
posted by Danielle Citron
Early this month, a class of Match.com subscribers sued the service for breach of contract, breach of the implied covenant of good faith, and negligent misrepresentation in federal district court in the Northern District of Texas. The complaint alleges that while Match.com claims to have “millions of active subscribers, well over half of the profiles on its site belong to inactive members who have canceled their membership or allowed their subscriptions to lapse and/or are fake and fraudulent profiles posted by scammers and others.” It asserts that as for inactive members, Match.com “takes virtually no action to remove these profiles . . . for months and sometimes years,” only removing them after former subscribers call to complain. As to fake and fraudulent profiles, the complaint states that Match.com “makes little to no effort to vet, police, or remove these profiles.”
According to the complaint, Match.com intentionally failed to remove the profiles of inactive and former subscribers in order to induce members of the class action “to either become or remain paying members.” The complaint claims that Match.com: (1) “routinely and intentionally represents that there are significantly more active members on the website than there actually are,” (2) falsely labels profiles as “active within [#] days” when the accounts belong to canceled and/or inactive accounts,” (3) sends “former and inactive members ‘winks’ informing them that a potential match is trying to contact them in order to get them to renew their subscriptions (only to find out after they do so that the supposed seeker does not exist), (4) fails “to effectively vet new profiles to determine whether they are fake or fraudulent despite easily discernible ‘red flags’ (including repeated use of imagery and language, and use of notorious IP address origins), and (5) misleads users into believing that the site has equal numbers of male and female members while the “makeup of actual active users is heavily skewed towards single males.”
To support their allegations, Plaintiffs point to changes in the site’s architecture. For instance, whereas members could themselves hide their profiles after becoming inactive members from 2006 to 2007, only Match.com employees could block a member’s profile from view beginning in 2008. The complaint also recounts the testimony of former Match.com employees who attest that the company’s database included a “huge” number of “filler profiles.” As for the complaint’s allegation that Match.com failed to police the site for fraudulent members, the plaintiffs seemingly point to language in the Terms of Use agreement that permits Match.com to review and delete content that violates its terms. They also suggest that “computer technologies exist that would allow the company to effectively and efficiently police its website for the benefit and safety of its customers.”
So what might we make of all of this? The fraudulent misrepresentation claims seem likely to survive a motion a dismiss given the purported testimony of former employees’ regarding filler profiles and intentional refusal to hide profiles of inactive members. The breach of contract and implied covenant claims are, in part, based upon the company’s alleged failure to police its site of fraudulent postings. Even accepting all of plaintiffs’ allegations as true, it is difficult to see how Match.com has alleged a cognizable claim that it obligated itself to police the site. According to Match.com’s Terms of Use, users agree not to post false information and Match.com retains the right to remove content that violates its terms (including offensive hate speech and stalking). It also states that Match.com is not responsible for content created by users and does not screen members. It would be terrific to hear what contract scholars like Dave and Larry as well as our commentators think of the suit. Love definitely has gotten tougher in the Information Age.
January 27, 2011 at 2:27 pm
Posted in: Contract Law & Beyond, Current Events, Social Network Websites, Technology, Web 2.0
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Responses (2)
Lawrence Cunningham - January 27, 2011 at 4:05 pm
Danielle,
Very interesting. I generally concur, with a twist and an addition.
The company does not seem to promise anything in the TOU/agreement so it is a stretch to claim the alleged performance breached any express contract term. Curiously, though, that may expand the role of the gap-filler of good faith. Silence on exactly what the company promises about maintaining the network might just include some of the basic housekeeping and honestly allegedly botched.
I also like that the complaint seems only to be seeking as damages the return of subscriber fees paid. It refrains from seeking absurd amounts of punitive damages. Similarly, I also like that it limits its theories of liability to three simple ideas, rather than following the terrible habit of delineating a dozen different theories to see if any will stick.
In short, I think it is a good complaint that the company should take seriously. At minimum, leadership should investigate the allegations, correct if true, and tell the public the truth.
Danielle Citron - January 28, 2011 at 9:30 am
Thank you so much for that insight, Larry! Really appreciate it.
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