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Federal Court Denies Preliminary Relief to Gay Victim of Revenge Listings on Grindr

Posted on: February 28th, 2017 by Art Leonard No Comments

 

A federal judge in Manhattan has denied a gay man’s request to extend a temporary restraining order that had been issued against Grindr, a web-based gay dating app, by a state trial court on the plaintiff’s behalf before the defendant removed the case to federal court.  Herrick v. Grindr, LLC, 2017 WL 744605 (S.D.N.Y., Feb. 24, 2017). 

Matthew Herrick claims that a “former love interest, known as JC, has impersonated him on Grindr by creating profiles bearing Plaintiff’s image and personal information, including his home and work address,” wrote District Judge Valerie Caproni in her ruling on the application to renew the state court’s TRO, which has since expired. “Some of the fake profiles describe Plaintiff as being interested in fetishistic sex, bondage, role playing, and rape fantasies and encourage potential suitors to go to his home or workplace for sex.”  Herrick alleges that “dozens of men” had responded, “some of whom have physically assaulted or threatened Plaintiff and his friends and co-workers.”  In a footnote, the judge says that Herrick “has at times described the total number of persons as ‘approximately 400.’”

Herrick claims that he has sent more than fifty complaints to Grindr, which acknowledges receiving them but has taken no action.  In his state court complaint, as described by Judge Caproni in her opinion, he asserted claims against Grindr for negligence, intentional and negligent infliction of emotional distress, and failure to warn (in connection with Grindr’s alleged failure to monitor its users, prevent abuse of the Grindr application, or respond adequately to his complaints).  He also brought claims for false advertising and deceptive business practices under state law, and a common law claim for negligent misrepresentation based on “Grindr’s alleged misrepresentations regarding the safety of the Grindr user community generally and Grindr’s alleged knowledge of JC’s history of harassment.”

The Manhattan state supreme court responded quickly to Herrick’s January 27, 2017, complaint, issuing a TRO the same day “compelling 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 then removed the action to federal court, claiming diversity of citizenship as the basis for jurisdiction.  Judge Caproni notes that there may be grounds for contesting the federal court’s jurisdiction. On February 21, Herrick filed his application to the federal court to extend the temporary restraining order, just one day before it was to expire, which Judge Caproni denied after hold a hearing on February 22.

In order to get a temporary restraining order, the plaintiff has to show, in addition to irreparable harm if it is not granted, that there is either a likelihood of success on the merits of his claim or sufficiently serious question going to the merits to make them a fair grounds for litigation and a balance of hardships tipping decidedly in his favor.  When the plaintiff seeks to compel the defendant to do something, not just to refrain from doing something, he has to show that “extreme or very serious damage” will flow from denial of relief.  In this case, Herrick is seeking to compel Grindr to take affirmative action to identify and remove any false postings by JC in this continuing course of harassment.

Judge Caproni assumed that the balance of equities favored Herrick’s request in light of his serious factual allegations of harm.  The problem, however, is that a federal statute apparently shelters Grindr from all, or almost all, of Herrick’s common law claims, and maybe even his claims about false advertising and deceptive business practice.  The Communications Decency Act (CDA), Section 230, protects against liability an “interactive computer service” (ICS) for content created and posted by a third party “information content provider.”  In other words, as interpreted by various federal courts, including the New York-based 2nd Circuit Court of Appeals, Grindr generally can’t be held liable for harm caused by content posted by its users unless it plays an active editorial role in the substance of that content. 

“Plaintiff argues that Grindr is not merely a publisher of third-party content but is also a creator of content by virtue of the sorting and matching functions and geo-locational services that it integrated into the Grindr application,” wrote Caproni.  “While dating applications with Grindr’s functionality appear to represent relatively new technological territory for the CDA, past cases suggest strongly that 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 fact that an ICS contributed to the production or presentation of content is not enough to defeat CDA immunity,” she continued.  “Rather, an ICS only loses its immunity if it assists in the ‘development of what [makes] the content unlawful.’”  “Neutral assistance” won’t lose the immunity.

Judge Caproni found that all the features of the app Herrick specifies as assisting the development of a listing are the kind of “neutral assistance” that does not lose an ICS its immunity under federal law, which would preempt his state law claims.  “The fact that these offerings have been weaponized by a particular Grindr user does not make Grindr the creator of the allegedly tortious content,” she asserted.  “Moreover, to the extent Grindr has ‘contributed’ to the harassment by providing functionality such as geo-location assistance, that is not what makes the false profiles tortious.”

The judge rejected an analogy to the famous Roommates.com case, in which the federal courts in California found that an app had lost its immunity because of the way it elicited information about personal characteristics of potential roommates, putting it in the position of assisting those posting roommate listings in violation of local housing discrimination laws.  “By comparison,” she wrote, “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.”  She also found that Herrick’s claims were similar to claims that had been rejected by one of her Southern District colleagues in a lawsuit against Craigslist, Gibson v. Craigslist, Inc., 2009 WL 1704355 (S.D.N.Y., June 15, 2009).

Although Herrick’s claims might seem to be viable under state consumer protection laws concerning misrepresentations in advertising, the judge found that his “injuries are so attenuated from the misstatements that it is highly unlikely Plaintiff will be able to prove causation.”  Herrick claims he signed up for Grindr because “he believed Grindr’s advertisements representing Grindr to be a ‘safe space.’  Approximately four years later, Plaintiff met JC on Grindr and began an intimate relationship with him.  More than a year after that, in October 2016, Plaintiff ended his relationship with JC.  Thereafter, JC began using Grindr to harass Plaintiff.  Put slightly differently,” wrote Caproni, “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.”

Caproni emphasized that this decision only addressed whether Herrick is entitled to the “extraordinary remedy” of a temporary restraining order” which is based solely on the allegations in his complaint.  Caproni indicated that she would set a briefing schedule for Herrick’s potential motion to send the case back to state court, and “Defendant’s anticipated motion to dismiss” based on the CDA, at a conference scheduled for March 10.  The first release of Caproni’s opinion on Westlaw did not indicate who is representing Herrick in the lawsuit, or even whether he is represented by counsel.

 

Grindr Not Liable for Hook-up with Underage User

Posted on: March 16th, 2015 by Art Leonard No Comments

A gay man’s attempt to hold Grindr responsible for his arrest and prosecution for sex with a minor was cut short on March 13 when U.S. District Judge Jerome B. Simandle in New Jersey ruled that the provider of an “interactive computer service” enjoys statutory immunity from liability for harm resulting from the content posted to its service by third parties.  Saponaro v. Grindr, LLC, 2015 U.S. Dist. LEXIS 30795.

Because Judge Simandle was ruling on Grindr’s motion to dismiss a complaint, he had to accept as true for purposes of deciding the motion William F. Saponaro, Jr.’s claim that he was unaware that the boy who turned up for the threesome with Saponaro, age 52, and his friend Mark LeMunyon, 24, was only 13 years old.  The issue for Judge Simandle was whether Saponaro’s factual allegations, if hypothetically accepted as true, would be sufficient to assert a legal claim for liability against Grindr.

According to Saponaro’s complaint, LeMunyon set up the threesome after the 13-year-old boy, who was a registered Grindr user, contacted LeMunyon seeking a “sexual encounter.”  Judge Simandle noted, “It appears that LeMunyon and Plaintiff had some form of pre-existing relationship prior to the operative events of this case,” but that the nature of that relationship was not spelled out in Saponaro’s complaint.  Saponaro alleged that he is not a registered Grindr user.

Grindr’s Terms of Use provide that the service is available only to adults.  Saponaro claims that when he questioned LeMunyon about the boy’s age, LeMunyon assured him that the boy had contacted LeMunyon through Grindr so he must be at least 18.  Evidently Grindr does not take any steps to verify the age of those who register to use the service.

The boy contacted LeMunyon on June 21, 2012, and LeMunyon then contacted Saponaro to arrange the meeting, which “came to fruition at Plaintiff’s home in Cape May some time during the following week,” wrote Judge Simandle.   Saponaro and LeMunyon were arrested on June 28 and charged with sexual assault and endangering the welfare of a child.  They face potential prison terms of up to 20 years.

Almost two years after his arrest, Saponaro filed his lawsuit against Grindr in New Jersey Superior Court in Cape May County, claiming that Grindr was negligent “by allowing the minor to hold himself out as an adult of consenting age on its on-line service.”  Saponaro claimed that he reasonably relied on Grindr’s Terms of Service, and that Grindr’s negligent failure to verify the age of registrants had led to Saponaro’s arrest and the costs he has incurred in defending himself from the criminal charges.  Saponaro also added a claim for negligent infliction of emotional distress.

Section 230 of the Communications Decency Act (CDA), a federal law, affords broad protection to providers and users of any “interactive computer service,” who are not to be treated as the “publisher” or “speaker” of any information provided by “another information content provider.”  Translated into everyday language, this means that Grindr is not liable for information posted to its service by individuals, and can’t be held responsible to perform the functions of an editor or gatekeeper regarding the content of publications.   By contrast, for example, a newspaper may be held liable for printing defamatory letters to the editor.  Numerous federal courts have dismissed lawsuits against internet service providers by individuals claiming to have been harmed as a result of information posted on their services, relying on Section 230 of the CDA.

Saponaro’s complaint relied on a 2008 decision by the 9th Circuit Court of Appeals, upholding liability for Roomates.com, an online roommate-matching service, for violating laws against housing discrimination.   Roommates.com required applicants for its service to fill out a questionnaire that inquired about their sex, family status and sexual orientation, in violation of a local housing discrimination law.  Judge Simandle found the situations distinguishable.  Roommates.com’s questions “develop content that facially violates a state or federal statute.”  By contrast, the questionnaire that Grindr users complete “asks users to enter information about themselves but these questions are facially benign.”  In other words, Grindr’s questionnaire did not ask people for illegal information in the context of dating and match-making.

The court found that Congress had strong policy support for adopting the broad protection for ISPs, as the statute states that it is U.S. policy to “preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation.”  Congress considered that holding internet service providers responsible for third party content would severely stifle freedom of speech on the internet, as providers would likely err on the side of excluding material rather than risk being sued.  Also, given the sheer  volume of third party content posted on interactive websites, the costs of monitoring and removing objectionable posts would be overwhelming.  Websites that do attempt to remove objectionable content rely on users to alert them.

Even if the CDA did not protect Grindr in this case, Judge Simandle ruled, Saponaro had also failed to assert a valid claim under New Jersey negligence law.  In order to hold somebody liable for harm caused by their negligence, a plaintiff has to show that the defendant violated some duty owed to the plaintiff.  The scope of duty is circumscribed by foreseeability on the part of the defendant that its conduct may cause harm to the plaintiff.  Perhaps LeMunyon, the Grindr user approached by the 13-year-old for sex, might raise such a claim, but Saponaro, who is not a registered Grindr user could not.

“The communications that occurred on Defendant’s website that ultimately led to the illegal sexual encounter were exclusively between LeMunyon and the minor, both of whom were registered subscribers to the website,” wrote the court.  “Plaintiff does not allege to be a subscriber to the website, nor does he allege to have participated in the communications with the minor on Defendant’s site.  Indeed, there is no allegation that Plaintiff ever used Defendant’s site at all.  He was not a foreseeable plaintiff in this case, and therefore Defendant did not owe a duty of care towards him.”

The court rejected Saponaro’s argument that “defendants must clearly have foreseen the potential for use by minors,” speculating that this argument might be relevant to “the question of whether harm to an underage user of Grindr was foreseeable,” but “does not show that there was a foreseeable risk that a non-Grindr user would be injured by the online actions of a minor.”  Furthermore, the 3rd Circuit Court of Appeals, whose rulings are binding on federal courts in New Jersey, had previously ruled that “publishers of online content do not have the ability to exercise care over user-generated content.”

Given these conclusions, Judge Simandle said he need not address Grindr’s alternative defensive argument that Saponaro was “the intervening cause of his own harm, since it was Plaintiff who met and had contact with this 13-year-old boy, not Defendant.”  Concluded the judge, “Much common sense supports this argument, but it may not be resolvable on a motion to dismiss in which Plaintiff’s allegation, that he was unaware of the boy’s age, must be accepted as true.”

The bottom line for Grindr users, of course, is not to rely on Grindr’s terms of service in drawing conclusions about the age or other salient characteristics of people they meet on-line.  While it might not seem particularly erotic or romantic, asking for proof of age of a youthful on-line contact is the safest way to go.