Fantasy Profiles in Online Dating

The prevalent use of fantasy profiles on dating sites

Many (perhaps even most) online dating companies use a number of fake or fictitious profiles in their online dating offers. Let’s call them ‘fantasy profiles. I like this term because it communicates the nature of the product that is being offered to consumers, namely the illusion that you enjoy the attention of gorgeous women. Some company use only fantasy profiles. Others use a percentage of such in their database. The reasons for the use of such profiles could be diverse. One likely reason is the lesser degree of difficulty for a company to fill a database with purchased fictitious profiles and launch its offers. The alternative would require it to spend large amounts of money on marketing to attract and maintain actual female members to their site.

Online dating verticals are complex from a legal perspective. Increasingly, the fantasy dating space makes the headlines in newspapers all around the world. Stories of men spending loads of money on what they thought were actual women may lead to public dismay. Regulators are therefore serious about enforcing the law against deception in the online dating sphere and companies are well advised to thread carefully.

Though this may surprise some people, there is nothing unlawful per se about ‘fantasy dating’ offers. There is nothing inherently illegal about using a fantasy profile on an online dating site. Whatever your personal views may be about the nature of the product of fantasy dating, it is still a product and it may be offered to consumers. That being said, it is absolutely critical (especially in the online fantasy dating business) to clearly and conspicuously disclose to consumers that the profiles are not real and there is no possibility of an actual physical date. These truths must resonate throughout the website and its marketing.

The pitch

The first thing to consider is the presentation of the offer to consumers. How are you describing the product? What does the top of your landing page say? Your pitch must be in line with the truths described above, i.e. that the profiles are not real and that there is no possibility of a physical date. In that sense, qualifying and presenting your offer as a ‘dating site’ can already be deceptive. Consumers, after all, automatically connect ‘dating’ to the possibility of having an actual physical encounter with a real person. That is not the product here so it may not be implied. The product is a fantasy chat product with no possibility of physical meetings. So it’s more accurate to present your website as a ‘fantasy dating’ or ‘fantasy chat’ site.

The core disclosure

Subsequently, the core of your disclosures to your consumers must be a clear and robust statement which accurately communicates the fictitious nature of the female profiles on the websites and explains that there will be no chance of an actual physical date. Forget about placing it on a hyperlinked terms and conditions page. Forget about putting this vital disclosure below the fold in a place where a consumer needs to scroll down to see it. Also do not bother making the disclosure hard to read by putting moving images in the background. None of such shenanigans will have any positive effect. Regulators have seen and rejected all of them. This disclosure should be given due attention and must be placed on a spot where consumers can easily see it. There are a multitude of rules which govern the question where exactly on a website and how such a pivotal disclosure must be deployed. Advertisers should take these rules seriously.

Furthermore, you have to make sure all your profiles have a sign on them signalling that they are of a fictitious nature. In past cases, such as Badella v. De Niro Marketing in 2011, a company has used the term ‘online cupid’ (abbreviated as OC) to mark their fictitious profiles. In the 2014 JDI Dating case, the term ‘virtual cupid’ was used. Though the term you choose can be significant, it is every bit as significant to clearly communicate to the consumer what this term means. Do not just expect a consumer to figure out that ‘virtual cupid’ means that the relevant female profile is not real.

Beware of your affiliates

Lastly, make sure your affiliates are not harming your offer’s compliance by marketing your site as a genuine dating site where people can meet each other, while you have gone through lengths to communicate on your site that the profiles are of a fantasy nature and physical encounters are not possible. From a legal perspective, a correct disclosure does not heal prior false statements. A statement on your landing page telling consumers that they should not expect to go on any dates, does not heal any false statements made to that same consumer by affiliates prior to his arrival on the landing page. A common misunderstanding in e-commerce, is the wrong conviction that deceptive statements by affiliate marketeers are their own problem and not the company’s concern. Be careful here. In many jurisdictions (including the EU) courts have already ruled that a company is in principle liable for any false statements used by affiliates marketing its product. There are ways to mitigate this liability and they should be explored.

Starks Legal is a boutique law firm in Amsterdam specialised in e-commerce. For any comments or requests for assistance, please reach out to marianne@starkslegal.nl