Section 230 Holds On As Grindr Gets To Use It As A Defense

from the finally-some-good-news-for-Section-230 dept

It's not really possible to predict the outcome of a court case. No matter how convinced you are that things look to be heading one way, there are still a zillion ways things can turn out otherwise.

That said, however, I'm glad to discover that my cautious optimism about the Herrick v. Grindr case was not misplaced. This was a case where a terrible ex-boyfriend set up a phony Grindr profile for Herrick, which led to him being harassed by would-be suitors thinking it was genuine. It was an awful situation and no one can fault Herrick for wanting to hold someone responsible. The problem was, if he were to succeed in holding the dating app liable, it would represent a serious weakening of Section 230's platform protection, which, as we've discussed many times, would lead to the reduction of online services and censorship.

Grindr has now prevailed, however, and, perhaps more importantly, so has Section 230 as a defense in the Second Circuit (albeit in a non-precedential decision).

Herrick’s products liability claims and claims for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress are barred by CDA § 230, and dismissal on that ground was appropriate because “the statute’s barrier to suit is evident from the face of the complaint.” [p. 7]

To some extent, the decision was fairly easy for the court to reach: first, Herrick had at various points acknowledged that Grindr was as an interactive computer service ("ICS"), and the Court of Appeals for the Second Circuit was not inclined to overturn the district court's finding that Grindr so qualified.

Indeed, the Amended Complaint expressly states that Grindr is an ICS, and Herrick conceded as much at a TRO hearing in the district court. Accordingly, we see no error in the district court’s conclusion that Grindr is an ICS. [p. 4]

The court also seemed to have little trouble recognizing that the objectionable behavior that was the subject of the complaint was based on information provided by a third party.

Herrick’s products liability claims arise from the impersonating content that Herrick’s ex‐boyfriend incorporated into profiles he created and direct messages with other users. Although Herrick argues that his claims “do[] not arise from any form of speech,” Appellant’s Br. at 33, his ex‐boyfriend’s online speech is precisely the basis of his claims that Grindr is defective and dangerous. Those claims are based on information provided by another information content provider and therefore satisfy the second element of § 230 immunity. [p. 5]

Perhaps more importantly for future cases, the court extended this reasoning to the Herrick's claims relating to the app's geo-location feature.

The claims for negligence, negligent infliction of emotional distress, and intentional infliction of emotional distress relate, in part, to the app’s geolocation function. These claims are likewise based on information provided by another information content provider. Herrick contends Grindr created its own content by way of the app’s “automated geolocation of users,” but that argument is undermined by his admission that the geolocation function is “based on real‐time streaming of [a user’s] mobile phone’s longitude and latitude.” Appellant’s Br. at 32. It is uncontested that Herrick was no longer a user of the app at the time the harassment began; accordingly, any location information was necessarily provided by Herrick’s ex‐boyfriend. [p. 5]

Finally, the court also recognized that the Herrick's claims involved treating Grindr as the publisher or speaker of the offensive content, when in fact it had originated with a third party (in this case the terrible ex-boyfriend).

Herrick’s failure to warn claim is inextricably linked to Grindr’s alleged failure to edit, monitor, or remove the offensive content provided by his ex‐boyfriend; accordingly, it is barred by § 230. … To the extent that the claims for negligence, intentional infliction of emotional distress, and negligent infliction of emotional distress are premised on Grindr’s allegedly inadequate response to Herrick’s complaints, they are barred because they seek to hold Grindr liable for its exercise of a publisher’s traditional editorial functions. To the extent that they are premised on Grindr’s matching and geolocation features, they are likewise barred, because under § 230 an ICS “will not be held responsible unless it assisted in the development of what made the content unlawful” and cannot be held liable for providing “neutral assistance” in the form of tools and functionality available equally to bad actors and the app’s intended users. [p. 6-7]

All in all, despite all the press coverage convinced that the terrible facts made the case seem like it would be a close call, the result was instead a pretty straightforward application of Section 230 as a defense working the way it was intended.

Filed Under: 2nd circuit, blame, cda 230, herrick, intermediary liability, section 230
Companies: grindr


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  1. identicon
    Anonymous Coward, 31 Mar 2019 @ 2:41pm

    Re: What about the male victims of rhyme porn?

    Jhon Jacob Herrick Grindr Smythe

    His name was my name too!


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