Online dating websites can have staggeringly large numbers of users posting content daily.  Without the proper safeguards in place, online dating websites could be held responsible for the actions of its users.  To protect themselves from facing regulatory actions and unwanted lawsuits, online dating websites should adopt and enforce detailed terms of use and associated policies that govern, among other things, the submission and use of user content.

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Online Dating Website Terms of Use

An online dating website’s terms of use govern and restrict the types of content that will be permitted on that website.  The terms of use should give the operator of the online dating website the right, but not the obligation, to remove or block particular users or content.  Not only will properly drafted terms of use provide the website’s proprietor with the means to remove potentially harmful content from the website, but it will also act as a preemptive defense from liability should any lawsuit or regulatory action arise in the future.

Under federal law, online dating websites can immunize themselves from certain lawsuits and regulatory action if the proper precautions are taken.  In this post we will address how online dating websites can protect themselves from materials posted by users that infringe upon third party trademarks and copyrights.  In future posts, we will discuss how online dating websites can guard against claims related to defamation, harassment, invasion of privacy and potential criminal liability based on user-posted content.

The Digital Millennium Copyright Act (DMCA)

The DMCA, codified at 17 U.S.C. § 512, contains a safe harbor provision that, if utilized, exempts online dating websites from liability for copyright infringing material posted by users.  The safe harbor provision of the DMCA offers online dating websites significant protection, given the severity of the penalty associated with copyright infringement – up to $150,000.00 per infringing use.  However, this exemption from liability is only available if the online dating website in question complies with the provisions of the DMCA.  Many of the DMCA’s requirements are relatively simple, such as registering an agent with the U.S. Copyright Office and fastidiously responding to take down notices for infringing material, but given the harsh consequences for noncompliance, online dating websites should consult experienced counsel.

It is important to note that user-posted content that infringes upon third party trademark rights is not covered by the DMCA safe harbor provision, nor are online dating websites exempt under any other statute.  Trademark infringement occurs whenever a user posts a picture, video or other material, that depicts a trademarked word or logo, without the trademark owner’s permission.  It is possible that these trademark uses can be exempt from liability on fair use grounds, but given the stakes, online dating websites should refer any claim of trademark infringement to experienced counsel.

The protection measures outlined above should be of interest to any entity operating an online dating website or social media outlet generally.

If you are interested in learning more about this topic or pursuing an online dating website or social media venture, please e-mail us at info@kleinmoynihan.com, or call us at (212) 246-0900.

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