Section 230 Protects Grindr From Harrassed User’s Claims–Herrick v. Grindr

This is a well-constructed and thoughtful Section 230 ruling. If this case keeps going in the same direction, it has the potential to become a major Section 230 precedent.

Herrick claims that ex-boyfriend JC used Grindr to launch a vicious five-month e-personation attack. JC allegedly created fake dating profiles in Herrick’s name, with his contact info, saying Herrick wanted sex; with the predictable result that allegedly hundreds of horny men responded to the profiles and sought out Herrick at his home and workplace. Craigslist has been used for similar attacks for a long time, and California created an “e-personation” crime to combat them. Herrick further claims he’s contacted Grindr over 50 times about this harassment campaign and never received a response other than a form acknowledgement email.

Herrick sued Grindr in state court and got an immediate TRO instructing Grindr to “immediately disable all impersonating profiles created under Plaintiff’s name or with identifying information relating to Plaintiff, Plaintiff’s photograph, address, phone number, email account or place of work.” Grindr removed the case to federal court. The court’s opinion is in response to Herrick’s request to extend the TRO. The court denies the request.

Section 230

If you are a Section 230 fan, I encourage you to read the opinion’s entire discussion about Section 230. It’s not that long, and I considered quoting the whole thing. It’s worth the read.

The court starts out: “At this early stage, it appears likely to the Court that Section 230 bars many (if not all) of Plaintiff’s tort claims,” including the negligence, IIED, NIED and failure to warn claims.

The plaintiff argued that Grindr’s “sorting and matching functions and geo-locational services” turned it into a content creator. The court shuts that down: “Plaintiff’s attempt to artfully plead his case in order to separate the Defendant from the protections of the CDA is a losing proposition.” The court explains:

The fact that an ICS contributed to the production or presentation of content is not enough to defeat CDA immunity.

The court then tries to engage with the Ninth Circuit’s Roommates.com precedent. On the plus side, this is yet another case where a court cites Roommates.com for the defense. On the minus side, the court does so by adopting the Roommates.com nomenclature of “neutral assistance,” a problematic and fundamentally incoherent phrase. On the plus side, unlike the Roommates.com case, this court actually defines what “neutral assistance” means: “tools and functionality made available equally to malefactors and the application’s intended user-base.” The court applies this definition:

Plaintiff has not identified any acts by Grindr—other than “neutral assistance”—that might make Grindr the “provider” of the false profiles created by JC. The Complaint describes the information collected by Grindr to set up an account, such as a profile photograph, name, and “about me” and “I’m looking for” sections. Add-on services allow users to block other users, swipe between profiles, and filter by additional categories. All of these functions appear to be available equally to all Grindr users

This leads to a quotable/tweetable line:

The fact that these offerings have been weaponized by a particular Grindr user does not make Grindr the creator of the allegedly tortious content.

The court further distinguishes the Roommates.com precedent by saying “there is nothing inherently illegal about the Grindr features described in the Complaint. Critically, Grindr has not contributed anything to the objectionable profiles; the profiles are objectionable solely because of the false
information supplied by Plaintiff’s tormenter.”

Citing Gibson v. Craigslist, the court concludes the Section 230 discussion by saying “Allegations premised on an ICS’s failure to “block, screen, or otherwise prevent the dissemination of a third party’s content,” seek to hold the defendant liable in its capacity as a “publisher.””

In a footnote, the court addresses a belated plaintiff argument that Grindr is “inherently dangerous”:

the product is only dangerous in combination with the sort of false content JC has created. While the Court gives Plaintiff credit for his creativity in formulating this argument, his claim rests, at bottom, on the tortious nature of the content that JC created and posted. Congress has clearly stated that an ICS cannot be liable for offensive content created by others. Plaintiff’s theory that Grindr has created a platform that is susceptible to misuse is fundamentally the same.

We’ve seen other attempts to invoke products liability theories to work around Section 230 (Doe v. MySpace comes immediately to mind) but this footnote is the cleanest rejection of the theory I can recall.

Perhaps surprisingly, the court doesn’t discuss any other Section 230 e-personation cases–the most conspicuous omission being the Ninth Circuit’s Carafano case, which perhaps the court felt was eclipsed by the Roommates.com case, or perhaps the more recent Caraccioli v. Facebook ruling. But this case has significant implications for future cases over fake profiles, in the dating context or elsewhere. The bottom line: Section 230 robustly protects against liability for third party-created fake profiles.

Misrepresentations

The court summarizes this part of the opinion: “While the CDA may not apply to Plaintiff’s claims based on false advertising and deceptive business practices (Counts II, III, & VII), Plaintiff has not made an adequate showing of his prospects for success on those claims, and they appear to the Court to be untethered from any of Plaintiff’s alleged injuries…Plaintiff’s injuries are so attenuated from the misstatements that it is highly unlikely Plaintiff will be able to prove causation.” I don’t think Section 230 is as categorically irrelevant to false advertising/deception as the court treats it, but the court gets to the right place anyway.

Herrick claims he joined Grindr in 2011 because he thought it was a “safe space.” He met JC on Grindr 4 years later, dated for a year, then things went south. The court questions the legal implications of this string of events:

the only connection between Plaintiff’s present day injury and Grindr’s alleged misrepresentations approximately five years ago is the fact that Plaintiff would not have otherwise joined Grindr in 2011 and would not have otherwise met JC. This is an exceedingly remote connection. The fact that “but for” Grindr’s advertising, Plaintiff would not have joined Grindr some five years before the harassment relevant to this case—assuming that to be true—is insufficient, standing alone, to establish causation.

The court says that Herrick’s failure-to-warn and contract breach claims all stem from the same underlying concern about product safety, so the court lumps them together with the misrepresentation discussion.

Conclusion

The court reaches the right legal result, but I still have questions about what happened here. Was Grindr really used for such a massive and malicious attack; and if so, what, if anything, did Grindr do to help protect Herrick? As a matter of corporate ethics, it would not be OK for Grindr to do nothing. We may get better answers to these questions later. For now, the court notes that Grindr “committed to continue voluntarily to monitor the Grindr application for fake profiles associated with Plaintiff’s personal information as it has in response to the existing TRO even if this Court does not extend the TRO.” That’s a positive step, but if that’s all Grindr did to protect Herrick, it’s a small and way-too-late step.

Because the opinion is so savvy about Section 230, I’m awarding the rare and coveted Technology & Marketing Law Blog Judge-of-the-Day honors to Judge Valerie Caproni. Congratulations, your honor. Opinions like this remind us why the US judicial system is so respected by other countries. May it always be that way.

Case citation: Herrick v. Grindr, LLC, 2017 WL 744605 (SDNY Feb. 24, 2017). Complaint.