Grindr Defeats FOSTA Claim–Doe v. Grindr

December 29, 2023 · by Eric Goldman · in Content Regulation, Derivative Liability

This case (like many I’m covering nowadays) involves heartbreaking facts, but from a legal standpoint, it was never meritorious.

Doe created a Grindr account at age 15 (Doe claimed he was 18). He matched with 4 men. “Doe met each man in person and was sexually assaulted and raped.” Three of the men are in jail; one is on the lam. Even though the legal system punished the wrongdoers, the lawsuits continue. Doe sued Grindr for strict products liability, negligence, and FOSTA. The court holds that Section 230 applies to the claims.

ICS Provider. The plaintiff didn’t challenge this factor.

Publisher/Speaker Claims. Doe claimed “he seeks to hold Grindr liable for the design, development, and sale of a defective product—the App—that matches children with adults for in-person sexual encounters and facilitates the exchange of sexually explicit material.” The court responds that “Grindr’s match function relies on and publishes a user’s profile and geolocation data, which is third-party content generated by the user.” Cites to Dyroff and Herrick v. Grindr. The court explains:

Grindr received the user content from Doe and the adult men and published it via the match feature’s notification. If Grindr had not published that user-provided content, Doe and the adult men would never have met and the sexual assaults never occurred. [cite to Doe v. MySpace–the same opinion the 5th Circuit nearly overturned]

From a legal standpoint, this isn’t complicated. Grindr allows users to talk with each other. That’s really all it does. The specific details about how Grindr facilitates those conversations don’t really matter. Section 230 applies when a plaintiff tries to impose liability for users talking with each other. The Doe v. MySpace opinion made this clear fifteen years ago, but plaintiffs keep trying to overturn this long-standing legal principle.

The court rejects Doe’s attempted Lemmon v. Snap workaround because Doe’s claim is based on third-party content:

the facts here differ from Lemmon and warrant a different result. The harm Doe alleges does not flow solely from the product software. Rather, the harm animating Doe’s claims is directly related to the geolocation and content provided by users, which facilitates the match, direct messages, in-person meetings, and ultimately here, Doe’s assaults. Unlike Lemmon, where the harm from reckless fast driving could occur independently of any publishing or editing, here, Doe’s assaults could not have occurred without Grindr’s publication via the match of user geolocation and profile data.

Ultimately, the alleged “defect” here is only relevant to Doe’s injury to the extent it made it easier or more difficult for other users to communicate with Doe, and thus Doe seeks to hold Grindr liable for its failure to regulate third party content. Furthermore, the Ninth Circuit considers a defendant website’s functions, operations, and algorithms—like Grindr’s match feature here—to be editorial choices, made to facilitate the communication of others

It’s impossible not to feel sympathy for the victim, but I’m struggling with the decision to deploy an obviously flawed legal strategy. Plaintiffs across the country are hoping to convert Lemmon v. Snap into a broad-based Section 230 workaround for negligence claims based on third-party content. That requires lawyers to make a cynical misreading of the Lemmon case. If the ultimate claim is based on publishing third-party content, Section 230 applies. The Lemmon case reinforces, not undermines, this position.

Third-Party Content. “Doe argues that Grindr materially contributed to Doe’s assaults by matching geographically proximate children with adults on the Grindr App.” The court says this argument isn’t relevant to this factor. Plus, “Had third parties, including Doe, refrained from sharing geolocation data and communications, the claims that Grindr failed to warn users of the risk of sexual exploitation or negligently misrepresented the App’s safety would not be cognizable.”

FOSTA. Citing Doe v. Reddit and Doe v. Twitter, the FOSTA workaround to Section 230 fails:

“Doe expressly alleges he informed Grindr he was over eighteen, so his direct perpetrator claim fails on this record because he cannot now assert that Grindr knew or should have known that Doe was a minor.”
Grindr didn’t violate 1591 based on these allegations: “Grindr may have had constructive knowledge of lawsuits or media accounts concerning sexual predators using the Grindr App in their predations, or that it derived revenue ‘from all users through the sale of ads.'”

The court distinguishes the AM v. Omegle rulings from Oregon:

To the extent the Court’s conclusions herein differ from those in Omegle.com, the Court must respectfully disagree. Regarding the product liability claims, Section 230 immunity is “quite robust.” The Court cannot escape that the claims here turn on Grindr’s treatment of third-party provided content, bringing them within the robust immunity provided by Section 230, and outside the excepted product liability claims recognized in Lemmon. Regarding the sex trafficking claims, the Court reads the statute and the Ninth Circuit’s decisions in Reddit and Twitter to require something more than the attenuated allegations of TVPRA liability pleaded here.

It’s heartbreaking to contemplate Doe’s experiences, and yet it’s also sad to see Doe try to stretch FOSTA to apply to situations it was never intended to reach.

This ruling is consistent with a similar (uncited) Doe v. Grindr decision from a few months ago. I assume this case is headed to the Ninth Circuit.

Case Citation: Doe v. Grindr, Inc., 2:23-cv-02093-ODW (C.D. Cal. Dec. 28, 2023)

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Grindr Defeats FOSTA Claim–Doe v. Grindr

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