Social media and digital networks are an intrinsic part of our modern society. These platforms have transformed the way that we form relationships, including romantic relationships. It has been reported that, in 2023, over three million people in Australian alone use dating apps to meet new people and even find love.
Despite being one of the most successful industries in this digital age, online dating success stories are met with their fair share of horror stories, akin to catfishing and even criminal conduct.
Recently, however, the spotlight is on the conduct of the online dating platform, eHarmony.
ACCC v eHarmony
Following hundreds of complaints from consumers, the ACCC commenced proceedings against eHarmony for allegedly making misleading statements about their memberships.
The allegations made by the ACCC, include that eHarmony:
- falsely advertised and misled users as to the fixed-length of membership subscriptions (for 6, 12 or 24 months), when they were actually subject to automatic renewal;
- falsely advertised that users could subscribe to a 1-month premium subscription, when this subscription option did not exist at all;
- made false representations that users could cancel their paid premium memberships after signing up;
- falsely advertised minimum monthly fees and failed to display the minimum total price of memberships until late in the payment process and in a small font; and
- falsely represented the functions available to users who signed up through the free ‘basic membership’ as providing ‘free dating’ services, however this membership only allowed users to view blurred profile photos, have limited interactions with other users and did not allow for ongoing two-way communication.
As a result of the alleged misrepresentations, the ACCC considered that potential users would have been more willing to engage with the dating services and purchase premium memberships.
Given the personal nature of the services provided, the ACCC has expressed concern that users are likely to bring a different state of mind in comparison to more commercial transactions. Consequently, some users may be more at risk of misleading or manipulative selling practices.
It was also noted by ACCC that eHarmony was consulted in the development of the Best Practice Guidelines for Dating Websites, and therefore should have been aware of its obligations to customers.
eHarmony has responded by stating that it has cooperated throughout the ACCC investigation and that it “takes [its] obligations seriously”. The dating platform could not provide further comment at this stage but has indicated that it intends to fully respond to the allegations in court.1
The ACCC is seeking orders including penalties, costs, injunctions, declarations and consumer redress.
Lessons to be learned
Advertising and marketing practices in the digital economy are a continuing enforcement priority of the ACCC in 2023-24. This means there is an ongoing focus on misleading or deceptive marketing practices, such as making it difficult for consumers to unsubscribe from paid subscriptions, the use of consumer data for exploitative marketing, manipulating online reviews and the use of other ‘subscription traps’.
It is important for any business (not just online dating platforms) that offers products or services online to be aware of their obligations under the Australian Consumer Law, particularly relating to the use of digital platforms to advertise or provide services to consumers.
This not only includes an obligation to ensure that advertising claims are factual and can be substantiated but also that they remain accurate throughout the life of any campaign. It is not enough that claims may have been factual at the commencement of the campaign, they must continue to be factual for so long as those claims remain online and are able to be accessed.
How can we assist?
If you require any assistance to review your digital marketing practices or ensure that your business is compliant with their digital service obligations, please reach out to our team.
This article was written by Alexandra Douvartzidis, Senior Associate, Alexandra Beal, Solicitor, and reviewed by Peter Campbell, Partner.
1 The Guardian, ‘‘Real love’ or false advertising? eHarmony sued by ACCC over ‘free dating’ offer’ (online, 7 September 2023) <https://www.theguardian.com/australia-news/2023/sep/07/accc-sues-eharmony-false-advertising-free-dating>.
