• CFRED CUHK Law

Online dating: the playground of predators

Neerav Srivastava – Monash University


-- In recent years there has been a proliferation of dating apps and crime connected to such use. Tinder rape is an extremely serious situation. About 15% of Australians or about 3.5 million Australians have used online dating. One particularly distressing case involved a gang rape set up by the Tinder male in Sydney. A survey by Columbia Journalism Investigations of 1,200 US women reported that ‘more than a third of the women said they were sexually assaulted by someone they had met through a dating app. Of these women, more than half said they were raped.’


The US Congress has launched an investigation into dating apps:


numerous dating apps fail to effectively screen out underage users, creating dangerous and inappropriate situations. This problem is exacerbated by policies that permit, and in some cases encourage, underage users to falsely claim that they are 18 years old in order to gain access to these apps … many popular free dating apps permit registered sex offenders to use them … Protection from sexual predators should not be a luxury confined to paying customers …. The United Kingdom has discovered dozens of instances of pedophiles using dating apps to … prey on children, some as young as eight years old.


In the US, Tinder only screens for a history of sexual violence for its paid subscribers, and not for its regular users.


In the US, so far five states have regulated dating apps. Rather than mandating vetting, the legislative policy has been to require the app to be transparent as to what vetting they do or do not conduct.


In Australia, there is no screening and no online dating legislation exist, even though Australians are among the most regular users of Tinder. The Tinder agreement contains disclaimers and makes explicit that Tinder does not conduct background checks.


So technology is enabling predators. Teenage dating apps have been called the ‘playground for predators’. The situation will likely worsen. Predators sometimes use catfishing’ or a false identity. Emerging software with dangerous implications includes ETER9 and Crystal. ETER9 purports to learn your personality and reply for you. Crystal learns the personality of people you are interacting with and recommends how to respond to them. Imagine a predator making use of such software.


Liability

If a victim wishes to sue Tinder for failure to take due care in vetting users it is most unlikely she will succeed under the consumer guarantee at s 60 of the Australian Consumer Law (‘ACL’). Section 60 provides that a ‘service’ be provided with due care and skill. Assuming, as per s 2 of the ACL and ACCC v Valve (2016) 337 ALR 647, that Tinder provides a service, it is unlikely that it is in breach of s 60 as:


  • the terms are against such a conclusion.

  • Tinder positions vetting as an ‘add-on’ paid-for feature. Likewise, a minority of successful online dating services key feature is screening and safety.

  • at the regulatory level, Australia has not established a protocol under which dating apps can vet users against offender registries.

  • under orthodox law, liability for an intentional third-party tort is exceptional: Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254, Prince Alfred College Inc v ADC (2016) 258 CLR 134.


This conclusion is consistent with American literature. A US commentator has observed:


if one user [assaults] another user on a first date, the dating website is exempt from liability, despite being essentially the proximate cause of that date.


To put this in context, online dating is big business. Tinder’s 2020 revenue figures were $1.4 billion. A guestimate of the cost of screening was in the low millions a year. The law is failing to engage with a new playground of sexual assault and child abuse. There is an urgent need for reform.


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