Can Tinder be sued for breach of care? – Hack | #tinder | #pof

Over the last few days, we’ve heard a lot about Tinder. Sexual assault survivors like Emily, who was raped by a man she met on the app, want the company to be held accountable.

Our ongoing investigation has revealed that Tinder exposes its users to assault, fails to act on complaints, and allows sexual predators to cover their tracks.

We’ve also heard it’s charging some users more for the service based on their personal data, but not telling them this is the case.

Its parent company has released a statement, but not yet agreed to an interview with Hack.

You may be wondering, what now?

Making Tinder accountable could take the form of pressure from regulators and government, but it could also involve legal action — by individuals or as a group.

Are there grounds for legal action? As a company providing a service to Australians, Tinder (or its owner, Match Group) has legal obligations under Australian Consumer Law (ACL). Gerard Brody, CEO of the Consumer Action Law Centre, told Hack that the popular dating app may have breached ACL in at least two ways.

“There are possible grounds,” he said.

“They’re not out of the question.”

1. Failing to respond to complaints

Australian Consumer Law (ACL) is a national law guaranteeing consumer rights when using goods and services in the country.

If you’re on Tinder in Australia, you’re protected by ACL.

Under ACL, services have to be rendered to consumers with “due care and skill”. A person who hires a house painter, for example, can take action under ACL if the painter spills a can of paint down the hallway without cleaning it up.

By failing to respond to complaints about a user or release their message history, Tinder could be breaching that requirement, Mr Brody said.

But Elizabeth O’Shea, a Senior Associate in Maurice Blackburn’s class actions practice said this argument was unlikely to be successful.

She said the community might have a reasonable expectation that a dating app would have a working complaints system and other safeguards against sexual predators, but the law has been slow to recognise this.

“A Tinder class action is a little far fetched under current laws but that doesn’t mean it’s not something we shouldn’t raise,” she said.

“Is it sufficient in the 21st century to not offer a proper complaints mechanism?”

“It’s like not putting airbags in a car.”

2. Secretly making some users pay more for the same service

Earlier this year, consumer advocacy group CHOICE revealed that Tinder was using the personal data of users — such age and gender — to charge them up to five times more than others for the same service.

On average, people under the age of 30 were offered prices that were more than double the prices given to those who were under 30.

This had already gone to court in the US. Early last year, Tinder settled a class action lawsuit for US$17.3 million for charging older users more than younger ones.

As part of the settlement, Tinder agreed it would stop the discriminatory price tiers for its subscription services, but only in California.

The CHOICE investigation showed staggered pricing was still being used in Australia.

Erin Turner, Director of Campaigns at CHOICE, told Hack that her organisation has made a complaint to the Australian Competition and Consumer Commission (ACCC) alleging that Tinder is breaching the misleading and deceptive provisions of ACL by failing to tell users what it was doing with their data.

“It’s misleading by omission,” Erin said.

Gerard Brody from the Consumer Action Law Centre agreed with CHOICE. He pointed out that the ACCC has gone after other tech companies for failing to tell consumers how their personal data was being used.

In July, the ACCC launched Federal Court proceedings against Google for misleading conduct.

“If there was a finding that Tinder was misleading and deceptive, and a class of people have suffered a loss that was caused by that conduct, then a class action would be possible,” Mr Brody said.

Am I protected by ACL if I didn’t pay for Tinder?

Yes, you are.

ACL applies whenever a good or service is being provided in “trade or commerce” — meaning the company is getting a business benefit from your participation. Money doesn’t need to have changed hands.

Tinder users add to the app’s user base, which encourages others to join, and provides an audience for advertisers, Mr Brody said.

Tinder is based overseas. Does that matter?

No.

ACL applies to any commercial transaction within Australia, CHOICE’s Erin Turner said.

“It doesn’t matter where Tinder is located or how it structures its operations. If it is selling something to Australians, it is subject to the Australian Consumer Law.”

“There’s no way around that. It needs to operate by the laws of Australia and it needs to help people out.”

Tinder T&C’s waive the right to a class action. Does that matter?

No.

Section 16 of the Tinder terms of use states that neither the user nor the dating app can go to court to “assert or defend any claims between you and Tinder.” The user also cannot participate in a class action lawsuit, the terms say.

Under ACL, contract terms considered unfair are void.

Is this term unfair? ACL specifically gives the example of a clause that restricts the right to sue as an example of an unfair contract term.

“This is a classic example of an unfair contract term,” Erin Turner said.

“We’ve called them out before, but we still see them in contracts again and again and again, particularly from large tech companies who think they can just waive away people’s consumer rights and ability to make a complaint.”

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