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prevailed, however, and, perhaps more importantly, so has Section 230 as a defense in the Second Circuit (albeit in a non-precedential decision).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, 29 Mar 2019 @ 9:49am

    3 cheers for a court doing the right thing. Now Harrick can go after his ex-boyfriend for harassment and whatever else they can come up with instead of suing the "paper" used to write "offensive content".

    Now cue the the resident trolls who can't tell the difference between a platform and a publisher.

    reply to this | link to this | view in thread ]

  2. identicon
    Anonymous Coward, 29 Mar 2019 @ 10:22am

    Now that's winning.

    reply to this | link to this | view in thread ]

  3. icon
    Thad (profile), 29 Mar 2019 @ 10:28am

    Re:

    Now cue the the resident trolls who can't tell the difference between a platform and a publisher.

    "Where's Poochie?"

    reply to this | link to this | view in thread ]

  4. identicon
    Anonymous Coward, 29 Mar 2019 @ 10:54am

    Re: Re:

    Currently tongue-cleaning his own anus, I expect.

    reply to this | link to this | view in thread ]

  5. icon
    Thad (profile), 29 Mar 2019 @ 10:58am

    Re: Re: Re:

    To the extreme!

    reply to this | link to this | view in thread ]

  6. identicon
    Anonymous Coward, 29 Mar 2019 @ 7:16pm

    Re: Re: Re:

    Nah, I think he's still stuck at the "fists balled in righteous outrage" phase.

    reply to this | link to this | view in thread ]

  7. icon
    That One Guy (profile), 30 Mar 2019 @ 12:38am

    '... the light/money's better out here.'

    Asshole ex posts details on a meetup site in order to harass victim.

    Rather than suing said asshole, they go after... the platform the asshole used.

    This lawsuit had 'they have more money and are an easier target' written all over it, and it's nice that the courts tossed it as groundless and going after the wrong party.

    reply to this | link to this | view in thread ]

  8. identicon
    Anonymous Coward, 30 Mar 2019 @ 1:59am

    Calling it.

    John Smith is Herrick.

    reply to this | link to this | view in thread ]

  9. identicon
    Anonymous Coward, 31 Mar 2019 @ 2:59am

    Same logic that caused female victims of revenge porn not to be able to sue the sites that trafficked in it (except the one whose owner put up the pictures himself). Same logic that lets Google (in the US) be weaponized by anyone, anywhere, with a grudge. Same logic that lets school mobs gather on social media before attacking (or murdering) their targets IRL. Same logic that lets foreigners or otherwise judgment-proof people blackmail white-collar targets with threats of using immune intermediaries to ruin their reputation.

    This case proves why Section 230 should never have existed in the first place, and perhaps the SCOTUS will decide the same (it's never taken a case on the confidentiality of the distributor immunity that was and still is a hallmark of offline law). Nevertheless, it is the reality until then, one which makes the world very dangerous for people targeted over the internet, and a very chilling effect on free speech, since defamation is now a primary retaliation tool against whistleblowers.

    The original poster, as they call it, does very little damage without assistance from search engines or platforms which don't enforce their user agreements that prohibit this conduct. A negligence claim like this shouldn't be lumped in with 230-immune conduct, since it does not require the platform to be negligent. Basic product-liability law should apply, but for now those who will use the internet to attempt to destroy people should rejoice, at least in America. Australia the UK, and most of the rest of the world do things a little differently.

    At the very least, the SCOTUS should take this case and truly lay down the law on Section 230, which it still has not done over twenty years later.

    reply to this | link to this | view in thread ]

  10. icon
    That Anonymous Coward (profile), 31 Mar 2019 @ 3:19am

    Re: '... the light/money's better out here.'

    I feel bad for him because the ex played up the whole I'll play hard to get thing (see also every case where an ex sent random men to a womans house to fulfill her rape fantasies) in setting up the dates, but I read the complaint and missing was any talk of a police report or protective order.

    They best he could muster was he & some friends sent random messages somewhere somehow to the platform that he couldn't find anywhere to file a complaint to reporting the profile as impersonation.

    (This mirrored the sort of thinking that dear Tiffany (of vTwitter Infamy) that because they said something something had to happen right as they wanted ignoring policy/laws)

    My sympathy wears thin when we understand it does not appear he ever sued the evil ex or reported him. Breathlessly talking about how terrified he is from all of these men buzzing his door at all hours of the night... but it never occurred to him if you put the ex in jail, they stop posting on Grindr. He left himself in danger to make a better emotional appeal to the courts that the company with the deep pockets needs to pay him.

    Of course Grindr is back int he media churn b/c the governments trying to get the Chinese to sell off their interest b/c they can TOTES use peoples hook up info & tasteful not nude pictures to figure out who has clearances and then blackmail them....
    The gays can get married now, but will totally sell out the country's secrets if you threaten to tell their boss they suck the dick... o_O

    reply to this | link to this | view in thread ]

  11. icon
    Stephen T. Stone (profile), 31 Mar 2019 @ 5:44am

    If you put a soapbox in your front yard and invite anyone to use it for the purpose of speaking their mind, for what reason should you be held liable for someone else’s words if you lack foreknowledge of what they will say when they step onto your platform?

    reply to this | link to this | view in thread ]

  12. identicon
    Anonymous Coward, 31 Mar 2019 @ 12:04pm

    Re: Jhon Herrick Smyth

    How does it feel to be outed bro?

    Freeing no?

    reply to this | link to this | view in thread ]

  13. 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!

    reply to this | link to this | view in thread ]

  14. identicon
    Anonymous Coward, 1 Apr 2019 @ 2:09am

    Re:

    Hi, Jhon.

    Legal settings aren't so easily altered in your favor without any way to fuck with the voting system mid-vote, aren't they?

    reply to this | link to this | view in thread ]

  15. identicon
    Anonymous Coward, 1 Apr 2019 @ 9:26am

    Re:

    Same logic that caused female victims of revenge porn not to be able to sue the sites that trafficked in it (except the one whose owner put up the pictures himself).

    I'm not aware of any of these sites. Can you please list them so we can report them to authorities, since revenge porn is illegal?

    Same logic that lets Google (in the US) be weaponized by anyone, anywhere, with a grudge.

    I'm not aware of how Google can be weaponized. Can you please elaborate as to which of their services you are referring to and how they can be weaponized? I've certainly not seen any reports of this happening.

    Same logic that lets school mobs gather on social media before attacking (or murdering) their targets IRL.

    Can you please also link to the instances to which you are referring, as I'm not aware of these? Also, please let me know how you plan to stop this from happening with other media as well, such as but not limited to: phone calls, letters, word of mouth, etc...

    Same logic that lets foreigners or otherwise judgment-proof people blackmail white-collar targets with threats of using immune intermediaries to ruin their reputation.

    I'm also not aware of this happening, nor have I seen any reports on such behavior. Can you please cite your sources so we can all learn about this?

    This case proves why Section 230 should never have existed in the first place

    I'm confused, can you please clarify this for me? It seems that an ex-boyfriend harassed his ex. I don't see anywhere where Grindr was the entity doing the harrassing. This law was cited as to why the plaintiff could not sue an innocent third party and instead was forced to go after the person who engaged in the harrassment. Can you please clarify why this should not have happened and the harrasser be let go without any consequences?

    perhaps the SCOTUS will decide the same (it's never taken a case on the confidentiality of the distributor immunity that was and still is a hallmark of offline law).

    Can you please clarify why this is relevant?

    Nevertheless, it is the reality until then, one which makes the world very dangerous for people targeted over the internet, and a very chilling effect on free speech, since defamation is now a primary retaliation tool against whistleblowers.

    Can you please clarify what law states that defamation and retaliation against whistleblowers is legal activity, and why making this legal would encourage more free speech?

    The original poster, as they call it, does very little damage without assistance from search engines or platforms which don't enforce their user agreements that prohibit this conduct.

    Can you please point clarify how disallowing people to voice their opinions would not chill free speech online? Also, please point to the clauses in platform TOS where it is stated that users can engage in harrassment without fear of consequences from said platform.

    A negligence claim like this shouldn't be lumped in with 230-immune conduct, since it does not require the platform to be negligent.

    Can you please clarify how Grindr was negligent, and how they could have known that the user who created the account was not the actual person specified?

    Basic product-liability law should apply

    Can you please clarify how Grindr's service operated in a defective or non-advertised manner, such that they would be liable for user damages due to a faulty product or false advertising?

    Australia the UK, and most of the rest of the world do things a little differently.

    Can you please clarify how the rest of the world has more freedom of speech and less censorship of individual rights and opinions than the US do to their different views?

    At the very least, the SCOTUS should take this case and truly lay down the law on Section 230, which it still has not done over twenty years later.

    Can you please clarify how the words used in the text of Section 230 don't mean what they mean in a common dictionary?

    reply to this | link to this | view in thread ]


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