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Lesson From the STD Website Case: Don't Hide Your TOS

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By Mark Wilson, Esq. on November 10, 2014 12:28 PM

When a John Doe plaintiff signed up for the dating website PositiveSingles.com, he thought his information was being kept private. And why not? The website, if you can deduce from the URL, is a dating site for people who are HIV-positive, as well as those who are interested in dating HIV-positive people (who are not, themselves, always HIV positive).

The website is part of a larger network of websites, all owned by the same company -- SuccessfulMatch Network -- that caters to different types of people, like Christians or HIV-positive African Americans. And that was part of the problem.

The Word for 'STD' Is the Same as the Word for 'Opportunity'

SuccessfulMatch is really two businesses. On one side is the personal-ad biz. On the other, it offers a business opportunity to entrepreneurs who want to create their own niche dating site. The opportunity comes from its pre-populated database of "anonymous" users who have signed up with one of the network of dating websites. So, by "confidential" and "anonymous," SuccessfulMatch means that they're sharing all the profiles throughout their network with people who want to create a new niche website.

John Doe sued, and last week, a superior court jury in San Jose, California, awarded Doe $16.5 million as a consequence of the misleading statements, BBC News reports. Doe was harmed by having his STD status shared with strangers on other websites that he hadn't signed up for. Even though each site had its own niche, the sites all shared the same database, meaning a non-HIV-positive white Christian could appear in a search result on a website for an HIV-positive African American.

Where's Your TOS? Oh, There It Is.

So what could GCs possibly learn from a case involving a dating website for people with STDs? Actually, the same thing they can learn from the Barnes & Noble "clickwrap" case. According to Doe's complaint, a user isn't required to actually read the website's terms of service before signing up, and there's no indication that a user has to even acknowledge that he's read it. But why would a user need to do that? The website claims all over the place that it's not going to share information with "third parties."

Except that owners of other websites in the SuccessfulMatch network aren't considered "third parties" -- they're affiliates, so it's OK to share information with them. Such legalistic argle-bargle isn't likely to persuade a judge that you're not trying to deceive customers, who really aren't expected to know that you have affiliates, and if so, that your affiliates aren't "third parties."

When crafting a terms of service agreement, as we've mentioned before, it's best to make it loud and clear about what it's claiming to do. Also make it conspicuous, to the point where a user at least has to acknowledge that he's read it before continuing. And please don't do what is probably the worst thing of all in this case, which is to make claims that are partially or wholly contradicted by the terms of service. Ultimately, it comes down to: What does the consumer reasonably believe he's getting into? "One hundred percent confidential" isn't actually a true statement if you have to hedge with esoteric definitions of confidentiality and third parties.

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