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Background checks may invite liability

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DALLAS—Internet dating heavyweight Match.com's recent announcement that it has voluntarily begun screening its members for registered sex offenders has some legal experts wondering if the Dallas-based company has opened itself up to a wave of new liability exposures.

In April, a Los Angeles woman sued Match.com after she was raped by a man she met using the website, who later was discovered to have six convictions for sexual battery. The plaintiff, Carole Markin, alleged that Match.com could have prevented the attack by checking prospective members against sex offender registries.

Prior to August, Match.com—like most online dating services—did not conduct background checks on its members.

However, “Companies have an obligation to act with reasonable care,” said Mark Webb, Ms. Markin's San Francisco-based attorney.

Ms. Markin agreed to drop her suit in late August after Match.com announced it would weed out registered sex offenders using federal, state and local databases.

While Mr. Webb said he and his client were satisfied with Match.com's decision to conduct the background checks—which the company has insisted was not part of a settlement agreement, but rather a voluntary act—legal experts say the website likely exposed itself unnecessarily to potential liability. By barring registered sex offenders from the site, the company has made itself legally responsible if even one slips through the cracks, they said.

Considering the ease with which a person could fake an identity or otherwise hide criminal convictions to gain access to the site, several attorneys said it is probably only a matter of time before Match.com faces another lawsuit.

“It's basic tort-law negligence,” said David Adler, a managing partner at Chicago-based law firm Adler & Franczyk L.L.C. “What Match.com is doing is not only increasing the scrutiny on themselves, but also the liability they could incur due to a breach of that new duty.”

Even if checking registries could prevent all sex offenders from accessing the site, those checks would not prevent other violent criminals from opening accounts and setting up dates, experts say. If someone were to be attacked under those circumstances, the company could find itself defending a negligence claim similar to Ms. Markin's.

“Once the door is opened, it's going to be very difficult for them down the line to argue that they don't have a duty to screen for other issues,” said Bradley S. Shear, Bethesda, Md.-based managing partner of the Law Office of Bradley S. Shear L.L.C. Mr. Shear said it was easy to imagine Match.com eventually being asked—or compelled by a court ruling—to screen for more categories of criminal offenses, from violent acts to drug convictions, burglary and fraud.

Civil litigation such as restraining orders, alimony and child support disputes also could become part of Match.com's screening or reporting responsibilities if a customer were victimized, Mr. Shear said.

“It's the kind of thing that sounds like a good idea at the start, but once you get the lawyers involved and start to parse through all the different potential liability scenarios, it's pretty scary,” Mr. Shear said.

For its part, Match.com has insisted that conducting the screening is by no means a promise of safety or a database free of sex offenders. In an email, the company said it does not foresee having to expand its restrictions to include other kinds of criminals.

“Match.com continues to stress that while these checks may help in certain instances, it is important that this effort does not provide a false sense of security to our members,” the company said in the email. “With millions of members, and thousands of first dates a week, Match.com, like any other large community, cannot guarantee and is not responsible for the actions of its members.”

Aside from the potential expansion of its exposure to its members' expectations of security, experts also wondered what effect Match.com's decision to screen for sex offenders would have on competitors.

Mr. Webb said he expects at least some online dating sites will consider implementing their own system of background checks, which he said likely would make online dating sites safer for their members.

Lori Nugent, a partner at Wilson Elser Moskowitz Edelman & Dicker L.L.P. in Chicago, said Match.com might have given itself a perceived competitive advantage over its rivals by offering to screen for sex offenders. However, she said, other companies should carefully evaluate their own services and risk profiles before making any changes.

“Those are business decisions that need to be made based on the type of service that they intend to provide,” Ms. Nugent said, adding that clearly spelling out the limitations of the security measures in the company's terms of use contract might provide some shelter from liability.

“Whatever they decide to offer, the best thing for companies in this space is to be transparent about what they do and what they don't do,” she said.

Other legal experts disagree, contending that once the duty of protection has been assumed, counting on disclaimers in a terms of use contract to protect a company from liability is at best misguided.

Erik Syverson, a managing partner at Los Angeles-based Miller Barondess L.L.P., said Match.com's decision to offer screening was perplexing from a legal standpoint and likely was made “to counteract whatever they've received as a result of this lawsuit.”

“Otherwise, it makes zero sense to me from every single angle,” said Mr. Syverson. “You're inviting litigation.”