Digital dating: Legal matters to consider before swiping right

The rules of the game have changed. Dating apps, such as Tinder, Bumble, Grindr and Hinge, allow people to make more connections in a series of “swipes,” than they might have over years in the office, classroom or in the club. Still, there are several things to consider from a legal perspective before joining the revolution.

Can your personal data be shared?
Privacy concerns are inherent since dating apps fit into the explosion of digital data that has emerged over the past few decades. App companies are given access to traditional personal information of users – such as name and email address – but also sensitive information such as the user’s physical location or “preferred” partner. How the app collects, uses and protects data is largely determined by its self-published privacy policy.

It is unlikely that any part of the federal patchwork of data privacy laws (such as the Health Insurance Portability and Accountability Act or the Gramm-Leach-Bliley Act) could be interpreted as covering dating app information. Several states have enacted broad, European-style laws that require anyone possessing personal data of the state’s residents to put reasonable security measures in place to protect it from unauthorized access (Missouri is not one of these states).[i] But other than those limited situations, statutes will not dictate what apps do with user data. Users should thus carefully read privacy policies before providing personal information, as these policies will likely be considered enforceable “clickwrap” agreements.[ii]

Are your conversations confidential?
Users may be especially concerned about the confidentiality of conversations that take place on in-app messaging services. Fortunately for the wary, dating apps are prohibited from disclosing the content of these conversations under the Stored Communications Act.[iii] While the SCA protects private communications, an open question is whether a “swipe right” or “swipe left” would be considered such a communication. The SCA only applies to communication content, and does not prohibit apps from disclosing user information. Again, this would fall under the privacy policy, and apps that violate their privacy policies could be exposed to breach of contract and consumer fraud liability.

The SCA also does not apply to other app users. Difficult-to-prove invasion of privacy torts, such as intrusion upon seclusion, would be the main remedy should another user take a screenshot of an embarrassing exchange and send it to the “aggrieved” user’s family, friends or coworkers.

What other risks exist?
Dating apps can be fertile ground for sophisticated phishing scams and other virtual fraud. In extreme cases, dates arranged through apps could lead to assault, robbery or other physical crimes. But users will be hard-pressed to hold a dating app liable for any harm that results from interaction with other app users. Apps will almost certainly disclaim all warranties and representations with regards to other users in their terms of use agreements. Additionally, the Communications Decency Act protects apps from liability based on content posted by users, such as phishing scams or misrepresentations about age.[iv] The app might be liable for negligence, however, if it were aware a user was engaged in illegal activity and did not deactivate the user’s account.

As digital dating continues to evolve, so do the legal considerations associated with it. That’s why it’s important for users to know what protections exist and don’t exist under the law before creating an account.

Greg Mitchell is counsel for UnitedLex, a multinational litigation support and cyber security firm headquartered in Overland Park, Kansas.

[i] See C.G.S.A. 42-471; Ark. Code Ann. 4-110-104.

[ii] Mohamed v. Uber Technologies, Inc., 2015 WL 3749716 (N.D. Cal. June 9, 2015).

[iii] Crispin v. Christian Audigier, Inc., 717 F. Supp. 2d 965, 987 (C.D. Cal. 2010).

[iv] Doe v. MySpace, Inc., 528 F.3d 413, 416 (5th Cir. 2008).

This information is intended as general information about the law and legal system. It is not to be considered as legal advice for your specific situation.

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