eHarmony Australia Pty Limited Exemption
[2014] QCAT 577
•12 November 2014
| CITATION: | eHarmony Australia Pty Limited Exemption [2014] QCAT 577 |
| PARTIES: | eHarmony Australia Pty Limited and eHarmony Inc |
| APPLICATION NUMBER: | ADL067-14 |
| MATTER TYPE: | Anti-discrimination matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Senior Member Endicott |
| DELIVERED ON: | 12 November 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. eHarmony Australia Pty Limited and eHarmony Inc are exempted from the application of sections 46(1)(a) and 46(1)(b) of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(b) of the Act. 2. eHarmony Australia Pty Limited and eHarmony Inc are exempted from the application of sections 124 and 127 of the Anti-Discrimination Act 1991 in relation to the attribute referred to in section 7(b) of the Act. 3. The exemptions will be in operation for 5 years and will expire on 11 November 2019. |
| CATCHWORDS: | ANTI-DISCRIMINATION – where company carries on a business of matchmaking – where the terms and conditions prohibit the services being used by married persons or persons in a de facto relationship EXEMPTION – where application made to exempt the service provider from certain provisions in the Anti-Discrimination Act 1991 (Qld) – where Act does not prohibit private choices made for social and romantic activities – whether appropriate and reasonable to grant exemption for business when providing matchmaking services Anti-Discrimination Act 1991 (Qld) ss 7(b), 46(1)(a), 46(1)(b), 124, 127 Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21 |
APPEARANCES and REPRESENTATION (if any):
This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).
REPRESENTATIVES:
| APPLICANT: | Kristen Lopes of Colin Biggers & Paisley, solicitors |
REASONS FOR DECISION
eHarmony Inc was founded in California in 2000 and provides an online matchmaking service. eHarmony commenced providing its matchmaking services in Australia in 2008.
According to the evidence provided to the tribunal, eHarmony (as both eHarmony Inc and eHarmony Australia Pty Limited are called in these reasons) provides its matchmaking services intending to create long-term relationships with a goal of marriage. For this reason, eHarmony provide matchmaking services to single individuals who are in a position to become legally married.
eHarmony provided a copy of the terms and conditions of its service to the tribunal. To be eligible to use the matchmaking services, a person must meet key eligibility criteria: must be at least 18 years of age, must not be married or in a de facto relationship, and must never have been convicted of an indictable offence and must not be a registered sex offender. eHamony advertises its business in a way that indicates that its services are available only to people of a particular relationship status, namely singles.
The terms of use are published on eHarmony’s website and potential users must confirm that they agree to, and are bound by, the terms and conditions of service prior to them using the matchmaking services. According to the evidence provided to the tribunal, when users sign up to the service, eHarmony asks questions about a variety of matters, including as to their relationship status.
In its submissions to the tribunal, eHarmony stated that its business caters to a specific group of people who have confirmed that they are single, do not have serious criminal convictions and are over the age of 18. These are the attributes expected of other clients by the existing clients of the business. eHarmony made submissions that to allow married persons to use its services would be unfair and deceptive to other users of the service who are seeking a permanent relationship.
eHarmony argued that if it allowed a married person to register to use its matchmaking services, eHarmony would be contractually obligated to provide that service and would in doing so, be facilitating interference with a marriage contract. eHarmony argued that it could be seen to be inducing its users to breach marriage contracts.
Such a situation would be inimical to the purposes of the matchmaking business of eHarmony that has the promotion of marriage as its goal. In its submissions, eHarmony stated that it seeks to uphold moral values that promote the sanctity of marriage. eHarmony seeks to avoid being required by the operation of law to assist a person to breach their own marriage contract when using its services.
eHarmony is bound by the laws of Queensland when conducting its operations in this State. Under the Anti-Discrimination Act 1991 (Qld) a person is prohibited from discriminating in the provision of goods and services on the basis of relationship status.[1] A person is also prohibited from asking for information on which unlawful discrimination might be based and from advertising to act in a way that contravenes the Act.[2]
[1]Anti-Discrimination Act 1991 (Qld) ss 45, 46 and 7(b).
[2]Ibid ss 127 and 124.
The Act contains some specific defences that render as lawful some conduct that is otherwise prohibited. None of the specific defences would apply to remove from eHarmony the statutory prohibition against limiting its services to single persons. However, there is provision for a person to seek a general exemption from the operation of the Act under section 113.
eHarmony has applied for a general exemption under section 113. A copy of its application was sent, as required, to the Anti-Discrimination Commissioner Queensland and no objection was raised from the Commissioner about the application. The Commissioner helpfully pointed out that a number of exemption applications for similar services had already been considered and granted in Queensland and elsewhere in Australia.
The tribunal, when considering an application for an exemption under section 113, must be satisfied that it would be appropriate and reasonable to grant an exemption, that there are not any non-discriminatory ways of achieving the purposes for which the exemption is sought and that there is support for the exemption being granted.[3]
[3]Boeing Australia Holdings Pty Ltd & related entities [2003] QADT 21.
The reasons why the Anti-Discrimination Act was enacted are set out at the beginning of the statute. It can be noted from the wording used that the Parliament wanted to reflect into Queensland legislation the provisions of certain specified international human rights instruments that upheld the human rights of all persons but that also promoted equality of opportunity for women, workers, children and disabled persons and that also sought to eliminate discrimination on grounds of race. The Act supports the free exercise of a person’s civil rights and provides equal protection before and under the law.
The focus of the Act is primarily on public action that interferes with a person’s opportunity to participate in society: at work, at school or other areas when education is given, in the provision of goods and services to the public, in superannuation and insurance services to the public, in the administration of State laws and programs.
In those areas where the Act deals with more domestically related or private action, the conduct prohibited is narrowed by specified exceptions: prohibition against discrimination in the disposition of land except when the disposition is by way of a will or gift or land having cultural or religious significance; prohibition against discrimination in accommodation except where the accommodation forms part of a person’s home. However, sexual harassment is prohibited wherever it occurs.
Apart from sexual harassment, the Act does not make render conduct unlawful that is wholly private in nature or is part of a person’s social interactions. A person can freely choose whom they want to engage with on a social or romantic basis. It is appropriate that the law does not intrude on that private aspect of a person’s life.
In its application, eHarmony by inference acknowledges that by conducting a business of supplying services that are described as matchmaking services, it is not itself acting in a private capacity but is engaged in a public activity of offering services that are essentially personal and private in nature.
In similar cases decided by Australian authorities, support was given to exempting the operation of parts of the anti-discrimination legislation from that business activity. In that way, the matchmaking choices or social activities of a person using the business services could be freely exercised according to personal preferences. The exemptions recognised that the reach of the State should be appropriately limited where a person’s social and private life was the subject of the business activity of a matchmaker or introduction agent.[4]
[4]See Re Annette’s Network [2006] QADT 29, Cestui Que Vie Pty Ltd [2003] VCAT 1688.
The application by eHarmony seeks exemption from the prohibition against providing services limited by relationship status, from the prohibition against asking for information about relationship status and from the prohibition against advertising for business addressed only to single persons who are not married or not in a de facto relationship. The application does not seek exemption from other aspects of the Act such as sex, race or disability and eHarmony would remain subject to the Act if it discriminated against a person because of those attributes.
The matters set out in paragraphs 12 to 17 have satisfied me that it would be appropriate and reasonable to permit eHarmony to conduct its matchmaking business on the basis that it provides services only to persons who are not married or who are not in a de facto relationship. The goal of matching users into a long-term relationship does not sit comfortably with having to provide matchmaking services to persons known to be already married. The services provided by eHarmony do no more than what users can lawfully do by themselves: discriminate in the choice of companion for social or romantic activities based on whether that person is available for marriage. eHarmony should not be required to extend its matchmaking services beyond the scope of what persons acting privately can do.
I am also satisfied from the submissions that there is not a non-discriminatory way of achieving the purpose of allowing eHarmony to provide its matchmaking services to singles. The submissions provided to the tribunal establish that its services are squarely linked to matchmaking purposes rather than merely to introducing people to each other for social purposes. The business model has goals that are inconsistent with its services being made available to married persons and to those in a de facto relationship.
I am satisfied that exemptions have been provided in Queensland and elsewhere in Australia to permit businesses similar to eHarmony to conduct their activities in such a way that they can advertise and provide services to particular segments of the public and can ask questions about a person’s relationship status and other personal details without being subject to complaints that they are acting unlawfully. The same grounds exist for an exemption in the case of eHarmony.
I am prepared to provide an exemption to eHarmony in the conduct of its business for a period of 5 years from the date of this order from the application of sections 46(1)(a) and 46(1)(b) in relation to the attribute in section 7(b) of the Act and from the operation of sections 124 and 127 in relation to the attribute in section 7(b) of the Act.
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