Cheatin’ Ain’t Easy: Potential Theories of Liability Emerge for Online Cheating Website Ashley Madison

Joseph F. Welborn III discusses possible theories of liability for lawsuits against Ashley Madison in the wake of its massive databreach. He writes, in part:

One interesting theory of liability comes from an old common law tort that has been phased out legislatively in all but seven states – alienation of affections. In fact, this theory had been used against Ashley Madison on at least one occasion even before the data beach. In 2012, a man from North Carolina sued Ashley Madison after his wife used the website to meet another man, ultimately resulting in a divorce. While similar claims could exist even without the data breach, a release of the confidential information allegedly taken would very likely bring the website into the crosshairs of individuals who previously had no idea where their former spouse had connected with a paramour. The good news for Ashley Madison is that proximate causation and intent to alienate affections as to any one scorned husband or wife could present proof problems for potential plaintiffs. Plus, the fact that only seven states recognize such a claim will likely limit any perceived risk.

The more troubling issue of potential liability is based on a contractual or quasi-contractual theory that may be asserted by individuals who decided to delete their Ashley Madison account in the past.

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