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A01057 Summary:

BILL NOA01057C
 
SAME ASSAME AS S01759-B
 
SPONSORVanel
 
COSPNSR
 
MLTSPNSR
 
Amd §394-c, Gen Bus L
 
Relates to how online dating services handle fraudulent members; requires certain disclosures.
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A01057 Text:



 
                STATE OF NEW YORK
        ________________________________________________________________________
 
                                         1057--C
                                                                 Cal. No. 21
 
                               2023-2024 Regular Sessions
 
                   IN ASSEMBLY
 
                                    January 13, 2023
                                       ___________
 
        Introduced  by M. of A. VANEL -- read once and referred to the Committee
          on Consumer Affairs  and  Protection  --  committee  discharged,  bill
          amended,  ordered reprinted as amended and recommitted to said commit-
          tee -- again reported from said  committee  with  amendments,  ordered
          reprinted  as amended and recommitted to said committee -- advanced to
          a third reading, passed by  Assembly  and  delivered  to  the  Senate,
          recalled  from  the  Senate,  vote reconsidered, bill amended, ordered
          reprinted, retaining its place on the order of third reading
 
        AN ACT to amend the general business law, in relation to  online  dating
          services
 
          The  People of the State of New York, represented in Senate and Assem-
        bly, do enact as follows:
 
     1    Section 1. Section 394-c of the general business law,  as  amended  by
     2  chapter 468 of the laws of 1996, is amended to read as follows:
     3    §  394-c.  Limitations  on certain contracts involving social referral
     4  services.  1. As used in this section, the following  terms  shall  have
     5  the following meanings:
     6    (a)  "social  referral  service"  shall  include any service for a fee
     7  providing matching of members [of the opposite sex], by use of  computer
     8  or  any  other  means, for the purpose of dating [and] or general social
     9  contact.
    10    (b) "ancillary services" shall refer to goods or services directly  or
    11  indirectly  related  to  or to be provided in connection with the social
    12  referral service process, including  but  not  limited  to  photography,
    13  grooming,  cosmetology,  dating  etiquette,  dating counseling, or other
    14  services.
    15    (c) "online dating service" shall mean  any  social  referral  service
    16  where  the services are offered primarily online, such as by means of an
    17  internet website or a mobile application.
    18    (d) "banned member" shall mean the member whose account or profile  is
    19  the subject of a fraud ban.

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03780-07-3

        A. 1057--C                          2
 
     1    (e)  "fraud  ban"  shall  mean  when  a member's account or profile is
     2  barred from an online  dating service because, in the  judgment  of  the
     3  service,  the  member  poses  a significant risk of attempting to obtain
     4  money from other members through fraudulent means.
     5    (f)  "New  York  member"  shall  mean a person who provides a New York
     6  residential or billing address or zip code or is in New York when regis-
     7  tering with the online dating service.
     8    (g) "personally identifying information" shall mean any representation
     9  of information that permits the identity of an individual  to  whom  the
    10  information  applies to be reasonably inferred by either direct or indi-
    11  rect means which shall include, but shall not be limited to, a  person's
    12  full  name,  home  address, telephone number, geographic location, email
    13  address, social security number,  or  a  combination  of  non-personally
    14  identifying  information  which, when put together, can permit the iden-
    15  tification of the person.  The first name, last name, and  image  of  an
    16  individual,  where voluntarily provided to an online dating service with
    17  the knowledge that  it  will  be  communicated  to  individuals  on  the
    18  service's  platform other than the individual providing it, shall not be
    19  considered  personally  identifying  information   when   disclosed   in
    20  connection with a fraud ban.
    21    2.  No  contract  for social referral service shall require payment by
    22  the purchaser of such service of a cash price in excess of one  thousand
    23  dollars.    Services  to be rendered to the purchaser under the contract
    24  may extend over a period not to exceed  two  years  from  the  date  the
    25  contract is entered into.  This subdivision shall not apply to an online
    26  dating  service  contract where the initial term is one year or less and
    27  any subsequent terms are one year or less where payment in excess of the
    28  amount provided under this subdivision is reasonable  in  light  of  the
    29  service's offerings.
    30    2-a. No social referral service provider shall require the purchase of
    31  an  ancillary  service  by a purchaser of a social referral service as a
    32  condition of entering into a social referral service contract with  such
    33  provider.
    34    3.  Every  contract for social referral service which requires payment
    35  by the purchaser of such service of a total amount in excess of  twenty-
    36  five  dollars shall provide that the seller of such service must furnish
    37  to the purchaser a specified certain  number  of  social  referrals  per
    38  month.    This  subdivision  shall not apply to an online dating service
    39  where the user can use a  search  functionality  or  is  presented  with
    40  possible matches.
    41    4.  Every  contract for social referral service which requires payment
    42  by the purchaser of such service of a total amount in excess of  twenty-
    43  five  dollars  shall  provide  that in the event that the seller of such
    44  service does not furnish to the purchaser the specified  certain  number
    45  of  social referrals, or in case of an online dating service with search
    46  functionality or algorithm or location based matching, any social refer-
    47  ral, for two or more successive months  the  purchaser  shall  have  the
    48  option to cancel the contract and to receive a refund of all monies paid
    49  pursuant  to  the  cancelled contract with the exception that the seller
    50  shall be entitled to retain as a cancellation fee fifteen  per  cent  of
    51  the  cash  price  or  a  pro  rata  amount  for  the number of referrals
    52  furnished to the purchaser, whichever is greater.   Every such  contract
    53  shall  set forth in the contract and in the bill of rights the manner in
    54  which such services provider determines its cancellation fee pursuant to
    55  this subdivision.

        A. 1057--C                          3
 
     1    5. Every contract for social referral service shall provide  that  the
     2  seller will not without the prior written consent of the purchaser sell,
     3  assign  or  otherwise  transfer for business or for any other purpose to
     4  any person any information and material of a personal or private  nature
     5  acquired  from  a  purchaser  directly  or  indirectly including but not
     6  limited to answers to tests and  questionnaires,  photographs  or  back-
     7  ground information.
     8    5-a.  Every  contract for a social referral service shall provide each
     9  purchaser with the unilateral right to place his or  her  membership  on
    10  hold  for  a  period  of  up  to  one  year; provided, however, that the
    11  purchaser and social referral service may mutually  agree  to  a  longer
    12  period  not  to  exceed  two years.   To exercise the   unilateral right
    13  provided in this subdivision, a purchaser must notify the social  refer-
    14  ral service provider in writing of his or her intent to do so.
    15    6.  Every  contract  for social referral service shall provide that at
    16  the expiration of the contract or at the expiration of services rendered
    17  by the seller, for  any  reason,  all  information  and  material  of  a
    18  personal  or  private nature acquired from a purchaser directly or indi-
    19  rectly including but not limited to answers to tests and questionnaires,
    20  photographs or background information shall be promptly returned by  the
    21  seller to the purchaser by certified mail and deleted from any electron-
    22  ic storage devices.
    23    7.  (a)  Every contract for social referral service shall provide that
    24  such contract may be cancelled without a cancellation fee  within  three
    25  business  days  after  the date of physical or electronic receipt by the
    26  buyer of a copy of the written contract.
    27    (b) In every social referral service sale, the seller shall furnish to
    28  the buyer a fully completed copy of the contract pertaining to such sale
    29  at the time of its execution, which is in the same language, e.g., Span-
    30  ish, as that principally used in the oral sales presentation  and  which
    31  shows  the  date of the transaction and contains the name and address of
    32  the seller, and in the immediate proximity to the space reserved in  the
    33  contract  for  the signature of the buyer and in not less than ten-point
    34  bold face type, a statement in substantially the following form:
    35  YOU, THE BUYER, MAY CANCEL THIS CONTRACT WITHOUT  ANY  CANCELLATION  FEE
    36  WITHIN  THREE (3) BUSINESS DAYS AFTER THE DATE OF THIS CONTRACT. SEE THE
    37  ATTACHED NOTICE OF CANCELLATION FORM FOR AN EXPLANATION OF THIS RIGHT.
    38    (c) Notice of cancellation shall be delivered by certified  or  regis-
    39  tered  United States mail at the address, or electronically at the email
    40  address, specified in the contract.
    41    (d) At the time the buyer signs the social referral service  contract,
    42  a completed form in duplicate, captioned "NOTICE OF CANCELLATION", which
    43  shall be attached to the contract and easily detachable, and which shall
    44  contain in not less than ten-point bold face type the following informa-
    45  tion and statements in the same language, e.g., Spanish, as that used in
    46  the contract:
    47                                     NOTICE OF CANCELLATION
    48                                     (enter date of transaction)
    49                                               (Date)
    50  YOU  MAY CANCEL THIS CONTRACT, WITHOUT ANY PENALTY OR OBLIGATION, WITHIN
    51  THREE (3) BUSINESS DAYS AFTER THE DATE OF THIS CONTRACT BY MAILING  THIS
    52  SIGNED  AND  DATED  NOTICE  OF  CANCELLATION  BY CERTIFIED OR REGISTERED
    53  UNITED STATES MAIL TO THE SELLER AT THE ADDRESS SPECIFIED HEREIN. IF YOU
    54  CANCEL, ANY PAYMENTS MADE BY YOU UNDER THE  CONTRACT  WILL  BE  RETURNED
    55  WITHIN  TEN  (10)  BUSINESS DAYS FOLLOWING RECEIPT BY THE SELLER OF YOUR
    56  CANCELLATION NOTICE.  TO CANCEL THIS TRANSACTION, MAIL BY  CERTIFIED  OR

        A. 1057--C                          4
 
     1  REGISTERED  UNITED STATES MAIL A SIGNED AND DATED COPY OF THIS CANCELLA-
     2  TION NOTICE TO:
     3  (Name of Seller)         NOT LATER THAN _______________
     4  (Address of Seller)                        (Date)
     5  ___________________
 
     6    In  case  of  an  online  dating  service, the contract, including the
     7  statement required by this subdivision,  may  be  furnished  and  signed
     8  electronically,  provided  such  contract  is provided to the buyer in a
     9  clear and conspicuous manner.
    10    (e) In every social referral service sale or renewal, the seller shall
    11  provide each purchaser with a clear and  conspicuous,  separate  written
    12  notice,  which  may be a conspicuous and appropriately labeled hyperlink
    13  for an online dating service, to be known as the "Dating Service Consum-
    14  er Bill of Rights", which shall contain at least the following  informa-
    15  tion:
    16                   Dating Service Consumer Bill of Rights
    17    1.  No  social  referral service contract shall require the payment by
    18  you, the purchaser, of an amount greater than one thousand  dollars.  In
    19  addition, no such contract may extend over a period of time greater than
    20  two years.
    21    2. No social referral service contract shall require you, the purchas-
    22  er,  to  purchase  a  good  or  service  which is directly or indirectly
    23  related to the social referral service.  These extra services are  known
    24  as  ancillary services and, while these ancillary service may be offered
    25  to you, the law prohibits the seller from requiring  that  you  purchase
    26  this service as a condition of your social referral service contract.
    27    3.  If  your  social referral service contract costs more than twenty-
    28  five dollars, the seller must furnish a minimum number of referrals  per
    29  month  to  you.  If  this minimum amount is not furnished to you for two
    30  successive months, you have the option of cancelling  the  contract  and
    31  receiving  a  full refund of all the money you paid, less a cancellation
    32  fee which cannot exceed either fifteen percent of the cash  price  or  a
    33  pro rata amount for the number of referrals furnished to you.
    34    4.  Your  social  referral  service contract must specify the distance
    35  which you, the purchaser, are willing  to  travel  to  meet  any  social
    36  referral.  No  social  referrals  shall  be  furnished where you and the
    37  referral live at a distance greater than the distance specified  in  the
    38  contract.
    39    5.  The  provider must have an established policy to address the situ-
    40  ation of your moving outside the area it services. This policy  must  be
    41  explained in your contract.
    42    6.  If  any  provision  of  the  social  referral  service contract is
    43  violated, you have the right to bring a court action against the provid-
    44  er which has violated the contract.
    45    8. Every contract  for  social  referral  service  shall  specify  the
    46  distance  which the buyer is willing to travel to meet any social refer-
    47  ral. No social referral shall be furnished by the seller to the buyer if
    48  either the buyer or the social referral reside  at  a  distance  further
    49  than  the  distance specified in either the buyer's or social referral's
    50  contracts.  This subdivision shall not apply to online  dating  services
    51  that are generally available to users on a regional, national, or global
    52  basis.
    53    8-a.  Every social referral service provider must establish and admin-
    54  ister a fair and reasonable policy for the situation in which a purchas-
    55  er moves to permanently reside at a location outside the service area of

        A. 1057--C                          5
 
     1  such provider.  This policy must be set  forth  in  every  contract  for
     2  social referral service.
     3    9. (a) Whenever there shall be a violation of this section an applica-
     4  tion  may  be  made by the attorney general in the name of the people of
     5  the state of New York to a court or justice  having  jurisdiction  by  a
     6  special  proceeding  to  issue  an  injunction,  and  upon notice to the
     7  defendant of not less than five days, to enjoin and restrain the contin-
     8  uance of such violation; and if it shall appear to the  satisfaction  of
     9  the  court  or  justice  that  the defendant has, in fact, violated this
    10  section, an injunction may be issued by the court or justice,  enjoining
    11  and restraining any further violations, without requiring proof that any
    12  person  has,  in  fact,  been  injured  or  damaged thereby. In any such
    13  proceeding, the court may make allowances to  the  attorney  general  as
    14  provided  in  paragraph  six  of subdivision (a) of section eighty-three
    15  hundred three of the civil practice law and rules, and  direct  restitu-
    16  tion.  Whenever  the  court  shall  determine  that  a violation of this
    17  section has occurred, the court may impose a civil penalty of  not  more
    18  than  one  thousand  dollars for each violation.  In connection with any
    19  such proposed application the attorney general  is  authorized  to  take
    20  proof  and  make  a  determination  of  the  relevant facts and to issue
    21  subpoenas in accordance with the  civil  practice  law  and  rules,  and
    22  direct restitution.
    23    (b)  Any  person who has been injured by reason of a violation of this
    24  section may bring an action in his  or  her  own  name  to  enjoin  such
    25  violation,  an  action  to  recover  his  or her actual damages or fifty
    26  dollars whichever is greater, or both such actions.
    27    (c) In cities having a population over one million, the provisions  of
    28  this  section  may be enforced concurrently with the attorney general by
    29  the director of a local or municipal consumer affairs office. In  cities
    30  having  a  population  over  one  million,  such local entities may also
    31  require social referral services to be licensed. Such licensing require-
    32  ments may be promulgated  as  are  reasonably  necessary  to  effectuate
    33  licensure,  provided,  however,  that  such  localities  may  not impose
    34  substantive requirements that are inconsistent with or more  restrictive
    35  than  those  set forth in this section. Any fee for such license may not
    36  exceed three hundred forty dollars for a two year period.
    37    10. (a) An online dating service shall disclose to all of its New York
    38  members known to have previously received and responded  to  an  on-site
    39  message from a banned member:
    40    (1)  the user name, identification number, or other profile identifier
    41  of the banned member;
    42    (2) the fact that the banned member was banned because, in  the  judg-
    43  ment  of  the  online    dating service, the banned member may have been
    44  using a false identity or may pose a significant risk of  attempting  to
    45  obtain money from other members through fraudulent means;
    46    (3) that a member should never send money or personal financial infor-
    47  mation to another member; and
    48    (4)  a  hyperlink to online information that clearly and conspicuously
    49  addresses the subject of how to avoid being defrauded by another  member
    50  of an online dating service.
    51    (b)  The  notification  required  by paragraph (a) of this subdivision
    52  shall be:
    53    (1) clear and conspicuous;
    54    (2) by e-mail, text message, or other appropriate  means  of  communi-
    55  cation; and

        A. 1057--C                          6
 
     1    (3)  sent  within twenty-four hours after the fraud ban, or at a later
     2  time if the service has determined, based on an  analysis  of  effective
     3  messaging,  that  a  different  time  is more effective, but in no event
     4  later than three days after the fraud ban.
     5    (c) An online dating service shall not be liable to any member who has
     6  an account or profile that is the subject of a fraud ban, for disclosing
     7  to  any  member  that it has banned the member, the user name or account
     8  identifier of the banned member, or the reasons for  the  online  dating
     9  service's  decision  to ban such member in accordance with this subdivi-
    10  sion where such disclosure does not contain their personally identifying
    11  information.
    12    (d) This section does not diminish or adversely affect the protections
    13  for online dating services that are afforded  in  47  USC  230,  or  any
    14  rights or protections otherwise provided to a consumer in law.
    15    §  2.  This  act  shall take effect on the sixtieth day after it shall
    16  have become a law.
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