Case shows difficulty in preventing online abuse

Marty Dolan, principal at Dolan Law, and his associate Karen Munoz represent victims of wrongful death and personal injury. His column “Law and Wellness” appears in the Chicago Lawyer and her column appears regularly in the Law Bulletin. This week’s blog is written by Karen Munoz.

The Illinois Supreme Court recently handed down a decision in Bonhomme v. St. James (2012 IL 112393), an interesting case in which the plaintiff brought a claim for negligent misrepresentation, among other counts, against a defendant who had created a fictional online character called Jesse and formed an online relationship with the plaintiff, leading the plaintiff to believe Jesse was real person. While the legal issue to which the court devoted most of its attention concerned the abandonment of claims in amended complaints, it is the holding in relation to the negligent misrepresentation claim that provides us with more food for thought.

 The trial court dismissed the plaintiff’s claim for negligent misrepresentation and the Illinois Appellate Court reversed. Ultimately, however, the Supreme Court reversed and affirmed its dismissal by the trial court.

In the case, the plaintiff and defendant were both members of an online chatroom about the western-style TV series, “Deadwood.” The defendant registered as a user of the site as ‘Jesse James’ and began chatting with, and emailing, the plaintiff. The plaintiff and the fictional Jesse, who the defendant led the plaintiff to believe was a real person, exchanged emails, personal photos, handwritten letters and gifts. The defendant even talked on the phone with the plaintiff, using voice-altering technology to disguise her female voice. Concurrently, the defendant maintained a personal relationship under the defendant’s own name.

The defendant created a fictional universe of 20 characters around Jesse including family members, an ex-wife and a therapist. On one occasion, they had planned to meet up but Jesse cancelled. The plaintiff and Jesse then planned to move in together but shortly before this was to take place, Jesse’s “sister,” Alice, informed the plaintiff that Jesse had died of liver cancer. She bolstered this fiction by communicating with the plaintiff through the other fictional characters about Jesse’s “death”.

The plaintiff was extremely traumatized by all of this and suffered from deep depression, headaches, exhaustion, insomnia and a recurring infection called MRSA (multidrug resistant staphylococcus aureus). Even after Jesse’s “death,” the defendant stayed in daily contact with the plaintiff and, at one stage, met up with the plaintiff to show her some of “Jesse’s favorite places” in her “home” in Colorado.

In affirming the dismissal of the count of negligent misrepresentation, the court engaged in an analysis of the history of the tort, which was based on cases involving business or financial transactions. In examining the jurisprudence of the state, the court observed that some cases recognized a cause of action in settings which were not strictly “commercial” or “financial,” such as the agency-assisted abortion. However, those cases did have a commercial element in that agency-assisted abortion is a highly regulated activity with a business element.

Unfortunately for the plaintiff, the instant case was found to be a “purely personal” one, exhibiting all the characteristics of a personal human relationship, but lacking any commercial or financial element which would bring it within the ambit of the tort of negligent misrepresentation. The court did express its regret at the suffering of the plaintiff and suggested the availability of recovery under other torts. However, it unanimously ruled that recovery for negligent misrepresentation was not possible.

The kind of relationship between the plaintiff and the defendant in the case may seem very strange to many of us. However, while the world of what might be called “traditional online dating” is ever-expanding, there is also a whole other universe where different kinds of relationships can be formed. Many hugely popular online media exist where people have fictional profiles or “avatars” and, as this case shows, there is huge room for manipulation or exploitation of users of those sites.

 I recently blogged about legislation introduced in Illinois regulating online dating websites. While that is fraught with difficulty, an effective way of preventing such abuses that take place through other sites that are not strictly for dating is even more unclear. Sadly, we may not have heard the last of this type of case.

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