Can Dating Websites be Sued for Alienation of Affections?

Via Overlawyered, I learned about this story from North Carolina. The Charlotte Observer reports:

A Charlotte man blames the breakup of his marriage not only on the other guy, but also on the online infidelity service that he says made it happen. 

“Life is short,” the Ashley Madison website coos. “Have an affair.” 

Robert Schindler of Charlotte says his ex-wife did just that 

So, Schindler is suing her alleged partner in the tryst, along with Ashley Madison and its Canadian corporate parent, Avid Dating Life Inc. 

At play here is a legal clash between the old and the new. North Carolina remains one of only a half-dozen states that still awards punitive damages when a marriage fails and someone other than the husband and wife is to blame. 

The so-called alienation of affection/criminal conversation laws have survived numerous efforts by judges, lawyers and some legislators to repeal them, and in recent years they have led to million-dollar judgments for wronged spouses. 

The Schindler case attempts to apply the centuries-old marriage statutes to a company marketing the new-age phenomenon of online cheating. Ashley Madison, which claims clients worldwide in the tens of millions, bills itself as “the most recognized name in infidelity.” 

Schindler’s 2012 complaint, which was back in Mecklenburg Superior Court last week for a preliminary hearing, accuses the company and Eleazar “Chay” Montemayor of Charlotte with working together to seduce Schindler’s wife, ruining his 13-year marriage.

Here is an earlier post where I explain the tort of alienation of affections in the context of Illinois.  The North Carolina approach to the tort is a bit different though.  Here is one statement of the tort from Chappell v. Redding, 313 S.E.2d 239 (N.C. App. 1984).  There, the court says that an alienation of affections plaintiff must prove three elements:

(1) plaintiff and his wife were happily married and a genuine love and affection existed between them; (2) the love and affection was alienated and destroyed; and (3) the wrongful and malicious acts of defendant produced the alienation of affections.

The most important and complicated element of these is the third element.  In further defining "malicious," the court wrote in Sebastian v. Kluttz, 170 S.E.2d 104 (N.C. App. 1969):

Malice as used in an action for alienation of affections means ‘injustifiable conduct causing the injury complained of.’ Malice also means ‘a disposition to do wrong without legal excuse, or as a reckless indifference to the rights of others.’ (citations omitted).

In the case of general dating websites, I doubt that the websites would be found liable for "maliciously" producing the alienation of affections.  The Ashley Madison attorney in the current case analogizes the dating website to a hotel or vehicle that might be used in an affair in an effort to argue that the website is a neutral third party that happens to be involved.

But the Ashley Madison case specifically raises some interesting questions about the definition of malice.  The website seems to be geared towards attracting a clientele that is interested in having affairs, as its advertisements indicate.  While dating websites in general might not be liable for maliciously alienating spouses' affections, websites like Ashley Madison that specialize in members who are interested in having affairs might cross the line.

If Ashley Madison can indeed be sued for alienation of affections, this could be a pretty big problem for the website.  While only five or so states recognize the tort, numerous plaintiffs in those states may want to sue the website as well as the individual who "produces" the alienation affections.  Websites like Ashley Madison will probably provide a clear trail of electronic communications that details the affair, and if the website is successful, it would be a more attractive defendant from a monetary perspective.