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LadyEllen -> not another misrepresentation thread? (10/3/2009 7:24:20 AM)
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Recently there have been several threads purporting to deal with misrepresentation by users of Collar Me, notably on the parts of users who are, (or are thought to be), genetically male but who represent themselves in their profile information to be female.
It is not within the premises of this discussion to debate the merits or demerits of such an approach as has been made in those threads. Rather this discussion is with regard to the concept of legal misrepresentation such as might support a claim before a court, in the context of the use of the website and interactions of users consequent to that use.
Neither is it the purpose of this discussion to provide advice and no reliance should be made on anything here said or commented upon; should you need legal advice then you should refer to a qualified person in your jurisdiction, bearing in mind that each case must be considered on its own merits.
Such a discussion must of course be established within the context of a particular jurisdiction and its legal model, and here is where the first of many issues arise. Where two users brought together, as it might be claimed by misrepresentation, are located within the same jurisdiction then the context is clear. However such clarity may necessarily be lacking by virtue of the international nature of the user population, not to mention that within the main part of the user population, (in the USA), that users who choose to interact may be located in different states with very different approaches to the subject matter, provoking questions not only of jurisdiction but also the prevailing model to be used unless this is agreed by users upon registration. This in itself, failing international agreements and (in the USA) a cause of action in Federal law, must tend towards caution in making any claim.
However, English Common Law having been the founding principle in the formation of law throughout the English speaking world, then local evolutions and legislation allowing, it ought to provide a basis for discussion to which such developments can be added by those familiar with local systems.
What then is “misrepresentation” in the context of a legal cause of action in English law? A wide definition would be “a representation by one party to another that something is true when it is not, which the other party relies upon and thereby suffers loss or detriment”.
Also to note is that misrepresentation is not all of a kind; distinction is made between innocent misrepresentation, (where the party making the representation had no cause to believe it to be untrue), negligent misrepresentation, (where the party making the representation did not know nor care whether it was true), and fraudulent misrepresentation, (where the party making the representation knew or ought to have known the representation was untrue). Clearly in this context and in the situations alleged in the threads referred to we appear to be dealing for the most part with fraudulent misrepresentation, which it should be noted, carries a high burden of proof, laying closer to criminal than to civil law proof.
And we should note that misrepresentation can take many forms; active communication of all kinds as one might expect, but also silence in itself can also be a misrepresentation where the party making the representation knows or ought to know that the other party would not act were he to know the information being withheld.
Throughout however, the original definition must be satisfied if a claim is to be considered; there must be –
- information communicated (or as with silence not communicated)
- which is untrue (or as with silence is not the whole truth)
- which the other party relies on
- and by which reliance the other party suffers loss or detriment
There is also another important concept to be considered however, that being contributory negligence on the part of the party who relies on the information. The principle of contributory negligence here is that the party relying on the information ought to have known the information was untrue or at the least ought to have suspected its truth prior to acting upon it; clearly it would be unfair to hold a party entirely responsible for making a false statement, where the other party contributed to his loss or detriment by his own negligence.
In the context then of Collar Me use, where it is apparent to all at the time of registration as a member that any user can portray themselves in any way they wish, there being no checks or limitations on the profiles so enacted, (aside from Moderator approval according to the “TOS”), there is a clear duty on users to not make any reliance on any information provided in a profile, but rather to verify such information for themselves prior to any interaction with other users that might lead to loss or detriment.
As a general principle then, at the very outset of participation on the website there is a duty on users and therefore a level of contributory negligence in any claim to misrepresentation in this context which must tend towards the dismissal of any such claims as speculative at best and more likely perhaps a nuisance suit from a vexatious litigant.
This however may not necessarily be the end of the story, for if a user has fulfilled his duty in verifying the information provided in a profile, then the contributory negligence aspect must lapse according to the extent of that fulfilment. Since the reasonable method of such verification must be in the circumstances to make enquiries of the person holding the profile, the duty then passes to this latter party to correct any errors, omissions or misleading information in the profile, and should this party then either maintain as true such errors, omissions and misleading information, the first and second aspects of misrepresentation, as noted above, are satisfied.
Should the claimant then rely on such maintained errors, omissions and misleading information then the third aspect is similarly fulfilled. Naturally any misrepresentation on the part of the claimant must however also be considered in the light of possible counterclaim.
However notwithstanding this, there can be no claim unless there has been loss or detriment. Whilst in the situation whereby users are induced to send money to other users, (specifically against the advice of the website organisers), and this turns out to be a fraud the claimant has a clear case, despite the difficulties of identifying either defendant or jurisdiction, for proceedings, the situation is less clear in the more normal circumstances of Collar Me interactions, (online communications, meetings, “dates” and so on), as to exactly what loss or detriment might have been suffered and in relation to which a claim, (subject to identifying defendant and jurisdiction of course), might be raised.
The allegations in the threads referred to at the outset were, (or implied), that the interactions had resulted in criminal acts being suffered by the party relying on information that turned out to be misrepresentations. In such circumstances the criminal justice system will necessarily take precedence over any civil proceedings, albeit to the benefit of any subsequent civil proceedings in that liability shall have been established in the civil case where the criminal proceedings bring about a guilty verdict. Notwithstanding this however, if monetary compensation is sought then it must be taken into account that the defendant, if he had the means to make settlement in the first place, may no longer have such means as a result of the penalties imposed upon him by way of his criminal conviction. This in turn raises the question as to whether the pursuit of civil proceedings may be worthwhile.
In the context of online communications, as we have seen above, there must be a duty on users to regard all representations to be suspect, pending satisfactory verification. As such it is impossible that any user might be held liable for misrepresentation in online communications without this attracting substantial relief by way of the contributory negligence of the party relying on what is known to be unproven information as above. Nevertheless there might from time to time be opportunity for an action in defamation by way of libel through online communication in the fora provided for discussions and the chat rooms similarly provided, and/or opportunity in harassment. Again however the difficulties of identifying a defendant and ascertaining jurisdiction remain, and it should be noted that the website provides facility whereby such causes of action can be reported and to most intents and purposes resolved satisfactorily without need for legal recourse.
Where there are meetings and “dates” between users facilitated by their interactions on the website, there may be greater opportunity to establish a claim for misrepresentation. Again however the identity of the defendant and the correct jurisdiction would remain to be established, and it must be noted that in normal circumstances any claim would necessarily result in the publication of the claimant’s name and address as well as his interest in activities which the wider society may not view in a positive light. It should also be noted that misrepresentation claims in the context of BDSM, dependent on the exact allegations, may be dismissed from court in any case where the meeting or “date” was arranged with the commission of illegal acts in mind. Subject to the satisfaction of all necessary conditions otherwise however, the problem remains as to what loss or detriment was suffered.
One might claim for the costs incurred of attending the meeting or date, one might claim for personal injuries suffered, and possibly one might claim for psychological injury – all in all potentially a substantial claim, notwithstanding factors such as possible counterclaim, possible contributory negligence, (in relation to the procuring of personal and psychological injury), and the possibly illegal nature of the reasons for meeting or dating.
All in all then we might summarise as follows, and indeed according to the advice provided by the website organisers and many users themselves;
- on the internet, everyone can be who they choose to be
- as such, you have a duty to verify for yourself any information you choose to rely on
- likewise, as an adult you are responsible for what you do, where you go and with whom you do and go in real life
- and so you should take all reasonable precautions to safeguard yourself in all circumstances arising from your use of the website
To which one might add;
- legal action is generally to be avoided where other means of resolution are available
- notwithstanding this, qualified advice from a lawyer should always be considered before legal action
- as we have seen, the likelihood of success in any of the causes of action here discussed are (in my opinion) very low – so low in fact that legal action should in most circumstances be discouraged
E
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