‘John Doe’ Sues Adultery Website Ashley Madison in U.S.

The Canadian-based adultery website AshleyMadison.com faces a U.S. backlash — led by the always- litigious “John Doe” — over a data breach that exposed more than 37 million formerly anonymous users.

The complainants still seek to maintain their anonymity behind the Doe pseudonym after hackers dumped almost 10 gigabytes of data on the Internet, providing information on users including e-mail addresses.

The website, with the slogan “Life is Short. Have an Affair,” and its parent company, Avid Life Media Inc. of Toronto, were sued by users in California who complained they paid $19 to have AshleyMadison scrub their profiles from the site, only to find out it didn’t do so.

The outed users have an uphill battle, says Kirk Nahra, a partner at Wiley Rein LLP who specializes in privacy and information security litigation.

“This will likely follow the pattern we’ve seen in a lot of these cases, lots of lawsuits get filed and few go anywhere,” Nahra said.

The sticking point is in the details, what’s the actual harm and identities of the alleged victims, Nahra said.

“If you’re in the class, would you even want to be identified. That’s the first issue. Then there’s the question of what’s the harm,” Nahra said. “Trying to describe what that harm is and why it’s the website’s fault that your wife divorced you is going to be interesting.”

Invidious Exposure

Lawyers in the California case said the records hacked, including names, personal data and details of sexual preferences and fantasies, might be used for “invidious exposure.”

Avid Life’s Chief Executive Officer Noel Biderman didn’t return an e-mail seeking comment on the lawsuits. Attempts to reach company officials by phone at the Toronto headquarters were unsuccessful and a general mailbox was full and could no longer take messages.

Avid Life offered a C$500,000 ($375,000) for information leading to the identification, arrest and prosecution of the hackers.

Ari Ezra Waldman, an associate professor at New York Law School, likens the breach to revenge porn, taking an otherwise private person and without their consent making them the subject of public ridicule.

With Ashley Madison it becomes an invasion of privacy that gets caught up in a moral crusade on infidelity, says Waldman, who focuses on issues of privacy and cyber harassment. The victims will likely be branded as cheats forever regardless of why they were on the website, he said.

“People have to get creative in seeking justice here because there are so many impediments,” Waldman said. “A lot of old statutes are not built for the information age. We need attorneys to get creative when private persons are the victims of someone’s moralist crusade.”

In Texas, users sued claiming the website failed to notify them promptly about the threat and then the actual release of personal information.

In that suit, Doe, described as “an adult male domiciled in Austin,” seeks more than $5 million in damages for the clients, who are said to have had “a heightened expectation of privacy due to the nature of defendants’ products and services.”

The parent companies have also been sued in Canada by two law firms seeking to represent Canadians who subscribed to Ashley Madison and whose personal information was disclosed. They claim C$760 million in damages.

The Canadian suit was filed by Eliot Shore, a disabled widower who chose to be identified, according to a statement issued by the law firms Charney Lawyers and Sutts, Strosberg LLP. Shore joined the website for a short time in search of companionship after his wife died.

The Texas case is Doe v. Avid Life Media Inc., 3:15- cv-02750, U.S. District Court, Northern District of Texas (Dallas).

-With assistance from Dawn McCarty in Wilmington, Delaware.