Tuesday, December 30, 2008

Hook-up site not liable for connecting man with minor

The Sixth Circuit Court of Appeals has rejected a suit by a man who blamed hook-up site SexSearch.com for connecting him with a minor (PDF), thereby leading to his arrest for unlawful sexual conduct with a minor.

The man who brough the suit had sex with a young woman after meeting her on the site, where she had a profile seeking a "1 on 1 sexual encounter" with "a man who can last for a long time." The young woman, who was 14, reported the encounter to the police, who arrested the man. He claimed that SexSearch's failure to prevent a minor from using its site constituted a breach of contract, a fraudulent misrepresentation, an intentional infliction of emotional distress, an unfair trade practice, and/or a tortious failure to warn under Ohio law.

The appeals court rejected each of these claims in turn. First, while the site's terms of service stated that users must be over 18, the site nowhere promised to prevent minors from registering and using the site. Indeed, another part of the terms of services stated that they don't verify ages. More importantly, the plaintiff had no business relying on any representations about the ages of users, since any who had registered for the site could tell that the site owners took no steps to verify age. Moreover, the court found that the danger that minors will pose as adults online is an "open and obvious" one that doesn't require a warning.

The court also held that the site had a right to contractually limit its liability to the value of the contract, saying:
A SexSearch gold membership costs $29.95 per month. Given the nature of the service, which encourages members to meet in person for sexual encounters, SexSearch’s potential liability is nearly limitless. For example, arrest, diseases of various sorts, and injuries caused by irate family members or others may be the result of such hedonistic sex. When selling such services, then, it is commercially reasonable for SexSearch to limit its liability to the price of the contract.
While I agree with the result, I am bothered by the court's tone regarding "the result of such hedonistic sex." Matchmaking and sex can have all sorts of consequences - fair enough. That reasoning should apply to any sort of dating or social-networking site that wants to limit its liability, and yet the court seems to go out of its way to imply not only that the buyer should beware but the buyer deserves whatever he gets.

The appeals court declined to consider the impact of a federal law, relied on by the trial court, that limits the liability of website owners from liability for content created by users. The scope of that site-owner immunity provision is as yet unsettled, and the court refused to go there.

Adult Video News, an industry outlet, features predictably positive coverage of the decision, notwithstanding its sex-negative tone. Once again, h/t How Appealing, which offers some background on the case.

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