Lies

Final Version, "Tinder Lies"

Fresh off the press in the Wake Forest Law Review.

|The Volokh Conspiracy |

My article "Tinder Lies" is now out in print with the Wake Forest Law Review. The abstract is here:

The rise of Internet dating—in recent years especially through the use of mobile-based apps such as Tinder or Bumble—forces us to reexamine an old problem in the law: how to handle sexual fraud. Many people with romantic aspirations today meet individuals with whom they do not share friends or acquaintances, which allows predators to spin tales as to their true identities and engage in sexual relations through the use of deceit on a greater scale than was previously practicable. Indeed, according to some studies, about eighty percent of individuals lie on at least some part of their online dating profiles, and a subset of those individuals tell lies that undermine their sexual mates' subsequent ability to give consent. Whether and how to criminalize this type of fraudulent behavior has been debated for some time, and the difficulties involved in prosecutions in this context have made criminal law a fairly ineffective tool. Previous proposals for tort recovery have failed to gain many adherents for similar reasons, and courts have been unwilling to extend existing tort doctrines due to a reluctance to legally recognize noneconomic harms. This Article seeks to strike a new path by first proposing that we harness the tools of trademark law to reduce search costs and deception in the dating marketplace, just like we do in the economic marketplace. Second, it argues that we should use a streamlined process through small claims courts to discourage behaviors that may bring significant dignitary, emotional, and other harms to people's lives and to offer victims a pragmatic path to legal recovery. Third, it proposes the use of statutory damages to alleviate the difficulties in accurately gauging the remedy level for the harm from a given instance of sexual fraud. By providing recovery in cases of material lies, like trademark law does in cases involving deceptive marks, this Article takes an important step towards aligning the legal framework of sexual fraud with those of other types of misrepresentation, incentivizing transparency in the increasingly murky dating world, and protecting individuals' ability to meaningfully consent to sexual relations.

I wrote up a condensed version of the argument for the Washington Post here, did a podcast episode on it for "Ipse Dixit" here, spoke to British TV Channel 4 News about it here, discussed it with Canadian CBC's "As It Happens" here, and talked with Irish RTE's news program "Drivetime" about it here, among others. I look forward to continuing working on legal issues related to online dating apps.

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  1. This sounds like a case for Judge Judy.

    “So you lied, sir, you don’t really like long walks on the beach. Get out your checkbook because you’re going to have to pay damages, but first I’m going to give you the scolding of your life.”

  2. If a person is allowed, under the First Amendment, to fake that they are a war veteran, than why on Earth would we want to make it easier so a person can be sued for lying for sex?

    1. They’re not allowed to fake that they’re a war veteran in order to gain something of value.

      1. While I don’t know the particulars of that case law, sex is clearly something of value, if one considers the very large and worldwide market in prostitution.

        1. mad_kalak, as per usual, you seem twisted around here.

          He knocked down your original point that [if lying about x(military service) is okay then lying about y(stuff to get sex) is okay] by telling you lying about x isn’t okay under the law when you are out to get something of value. then you follow up saying getting sex is of value. You are just further knocking down your original argument.

          1. Not quite right, because I was asking a rhetorical, not making an arguement. Making an algebra equation out of a rhetorical doesn’t work, but it looks fancy though. Bravo to you on that.

            I comment that as a matter of case law, people have a 1A right to lie about vet status, so I ask the rhetorical why advocate for a policy to make lying about sex subject to courts through civil law. Think about it.

            That I respond is new information, by pointing out incongruity, after I admitted I was unfamiliar with that line of case law, is honest knowledge seeking. But hey, keep up the good work (I guess).

            1. it’s [argument] not arguement. but i make typos too..
              “that i respond is new information” [?]

              I wasn’t making an equation, i was trying to simplify your language so that you could understand it.

              Argument is presenting reasons to believe something. Rhetoric is using persuasive language. If you are using persuasive language in the form of a rhetorical question, you are arguing for the point made (if any) by asking that question. whether you were aware or not, you were arguing that the proposed civil liability should not be made law via your ‘rhetorical’.

              However, (perhaps you are now aware,) your rhetorical statement carries no persuasive weight whatsoever. when you account for your misapprehension.

              your original ‘rhetorical’, made accurate:

              If there’s a right to lie re:military service, except where you fraudulently gain benefit, why should there be a right to lie to gain sex, which is also of value.

              It no longer works as a rhetorical question.

              When you highlighted the fact that sex is valuable, did you mean to say that you see the flaw in your original ‘rhetorical’?

              how do you connect the beginning and end of your last sentence in your first reply? how does your lack of knowledge of case law relate to sex being of value? How does that relate to your rhetorical in your mind? Do you think it bolsters or destroys the value of the original rhetorical question?

              The from of your reply implies that the person you are responding to denied that sex is of value.

  3. If misrepresenting ones self online, or anywhere for that matter, is going to become an actionable offense, criminal or civil, we better start staffing up the courts because the line to follow suit is going to get really really long. And what in the world could go wrong with judges going through dating profiles or social media to decide if a picture was too closely cropped and did not accurate represent someone’s likeness in person. Or if by saying I was really six feet was “lying” because I included my height when I am wearing shoes with a big sole. And who is it really to say I am not a model because I haven’t ever done a professional shoot or appeared in a media publication, but instead have 150 followers on Instagram that like my selfies. What could go wrong?

    1. JtD: ” we better start staffing up the courts because the line to follow suit is going to get really really long. ”

      Beginning with the 80% of Tinderistas who lie about one or another thing on their profile? Isn’t this be a caveat emptor issue? One doesn’t /have/ to give consent because someone else made a claim about being a well-hung, wealthy dentist.

    2. So if you read the article, you’d see that appearance would not be actionable (as lies becomes obvious before sex). It’s actually concerned about married men lying about being single, with the proposed remedy being small claims court. I’m not a fan of the proposal, but it’s not as ridiculous as you make it seem.

      1. I still don’t buy it.

        Tindr is a hookup site. There is no difference in my mind between someone lying about their marital status in their profile, and someone lying to the person they are trying to pick up in a bar.

        I could maybe understand if we were talking about a site intended for people to meet their soul mate, but Tindr is definitely not that.

  4. Feminists are the new puritans.

    Bringing back heart balm torts that earlier generations largely abolished.

  5. Having skimmed the article, it is written from a feminist perspective with the assumption that it is male sexual behavior that needs to be controlled. Granted, the sex drive in men is higher, but there isn’t any evidence that sexual fraud is any more a male problem than a female one. Studies indicate that women cheat at the same rates as men these days. Moreover, women have a greater incentive to lie when the lie matters most, in that the primary value that they bring to a marriage is their youth and fertility.

    1. I have to wonder if wearing makeup in a photo will be consider deceptive if the law is applied equally between the genders?

  6. This sounds a lot like a solution in search of a problem. People lie. About all sorts of things. As anyone who has watched more than a couple of episodes of House could tell you, “Everybody lies.” Learning to recognize that simple fact and learning how to deal with it is part of becoming an adult. So we develop new legal rights and remedies for dealing with those who lie on Tinder – What’s next? Shall we create new legal remedies against those who post insulting internet memes? Or create rights to enjoin internet trolls? Hasn’t government already done more than enough to infantilize us? Where will it end, when we can no longer dress or feed ourselves?

  7. You want more people to sue over lies on dating apps?

    Sorry, but the answer to “people lie about their age and weight” isn’t “sue them”, it’s “assume they’re lying and be pleasantly surprised if they’re not”.

    1. Lying about age and weight are readily apparent (age less so) upon first meeting. It’s not as if people are first meeting in a dark room then immediately hooking up. The lies at issue are those that are not so readily apparent upon first meeting, such as marital status, occupation, education, criminal record, etc. However, there should be a minimum of due diligence required before one can sue for the less readily apparent lies.

  8. Not everything is improved by application of the government sledgehammer.

    People don’t learn to detect and respond to social lies by reliance on Big Brother’s sledgehammer.

    In fact, this should be a wake-up call that quite a lot of social ills are the result of people not learning how to deal with social experiences — single kids, helicopter parents, snow flake college students, politicians with access to the sledgehammer controls.

    It’s unfortunate that while thick skins are effective against social insults, they are ineffective against sledgehammers.

    1. I agree that policing mere online lies isn’t a good use of the sledgehammer.

      But if things get to the place and moment of truth, one party explicitly says “I do not consent to sex if X”, the other party continues to lie about X, and X is some objective tangible fact, then to me that’s a serious wrongdoing and there needs to be remedy.

  9. Attorneys should advise their clients to never ever say “I love you.” or even “You look nice.”

    In that spirit, I will abstain from saying “nice article.”

  10. This is a great idea but it should be combined with “public accommodation” type laws that ban people from discrimination when consenting to sexual relations. For too long men have been the subject of vile discrimination by women or being too short, too poor, too ugly. Men will stop lying to get sex when women stop inducing them to lie by discriminating.

    1. It works both ways. Men are more likely to complain about “too old” or “too fat.”

  11. I’m sorry but I’m just not buying the starting premise that there is “deceit on a greater scale than was previously practicable”. Is there deceit? Of course. Always has been and always will be. Despite the hyperbolic media coverage and the rosy revisionist views of the past, I see no actual evidence demonstrating that the deceit is really worse that it used to be – or that it still is among those who choose to find their partners without electronic assistance.

    1. Plus lying about height, weight, (lack of) hair etc., cannot proximately cause sexual relations by deceit (or whatever you want to call this crime against humanity).

      Unless I am really misunderstanding how Tindr works, any sex sex occurs between the actual people, not their online persona. And before that sex can occur, those people need to actually, uuh, see each other.

      That tends to be a giveaway as to how people actually look. So you end up on a blind date with someone who does not live up to their description, sorta like what happens on 98% of blind dates.

      P.S. just about all these concepts have been covered in Seinfeld episodes (George wearing the boots that make him taller, George getting a wig, George answering a personal ad in the Daily Worker and pretending to be a communist, George converting to Latvian Orthodoxy….)

    1. Happily, not (yet) in the U.S.

  12. Let’s supposed you go into a restaurant. You order a fancy French dish. It isn’t really authentically French, the chef wasn’t French-trained. You sue the restaurant and get a big payout, because you’ve been terribly oppressed and hurt, and society really, really sympathizes with you, right?

    Wrong. Hate to break it, but most of society -sub-minimum wage waitress who can’t afford to eat there, diabetics dying without insulin who can’t afford to eat at all – really couldn’t give a shit (I don’t often use profanity, but I’m making an exception here because I think the rage level deserves expression) how oppressed you feel because you feel you weren’t served exactly what was promised you. Don’t like this night’s restaurant, next night order somewhere else. It’s not like it will make any difference in your life or anyone else’s in the scheme of things.

    Why should your pleasure for the night be any different? In states with legal prostitution, society doesn’t support suing because the services weren’t exactly to satisfaction.

    And why should one-night stands be different? Don’t like your tinder swipe, swipe elsewhere next night. Why should you or anyone else in the 1% require the people who serve you and wait on you as you go about your self-indulgent orgies, people who themselves sacrifice to take care of spouses they made long-term promises to, to sit and serve as your jurors, let alone give the slightest shit, if you don’t like your lay?

    1. ^ This!

  13. Yeah, brilliant. And so obvious. Lawyers and accusations of trademark infringement. The perfect ending to cap a first date.

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