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.
Tags: Communications Decency Act, District Judge Valerie Caproni, false profiles on Grindr, Grindr, Herrick v. Grindr LLC, ICS immunity from liability, information content provider, interactive computer service, temporary restraining order, U.S. District Court Southern District of New York