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Herrick Loses 2nd Circuit Appeal in Grindr Cyberharassment Case

Posted on: March 28th, 2019 by Art Leonard No Comments

A unanimous three-judge panel of the New York-based U.S. Court of Appeals for the 2nd Circuit issued a ruling on March 27 stating total agreement with District Judge Valerie Caproni’s earlier ruling in January 2018 that Grindr enjoys totally immunity from any liability for the harms suffered by Matthew Herrick, a gay Manhattanite whose ex-boyfriend created fake Grindr profiles in Herrick’s name that led more than a thousand people to contact Herrick at home and at work for “fetishistic sex, bondage, role playing, and rape fantasies.”

Unlike Judge Caproni, the appellate panel, consisting of Circuit Judges Dennis Jacobs, Reena Raggi, and Raymond J. Lohier, Jr., omitted some of the gory details from their brief “summary order” which does not have “precedential effect” but which nonetheless seems totally consistent with other court decisions interpreting Section 230 of the Communications Decency Act, a federal statute that Congress intended to crack down on internet pornography by requiring service providers, among other things, to enable parental controls over what minors can access on-line.

Herrick achieved some initial success when he first filed suit in a New York State court, getting a motion judge to grant a temporary restraining order requiring Grindr to disable the fake profiles.  But Grindr immediately removed the action to federal court and moved to dismiss it, citing Section 230, which as relevant to this lawsuit says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In other words, as found by Judge Caproni and the 2nd Circuit judges, Grindr is not responsible for the content of what users of its app post there.   Of course, there is nothing in this statute to prevent Herrick from suing his ex-boyfriend using various state law theories, but Grindr is essentially immune from liability for harm caused by content posted on its app by users.

Herrick’s attorneys ended up amending the original complaint that he had filed by himself in state court, in order to allege a wide array of possible legal theories seeking to escape Section 230 immunity, but to no avail.  The court found that all of Herrick’s claims arose out of “information provided by another information content provider” – that is, his ex-boyfriend – and thus all of them fell within the broad sphere of Section 230.  The provision has been liberally interpreted by federal courts to avoid imposing an extremely burdensome censorship obligation on operators of what the statute calls “interactive computer services,” which include “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”

As Judge Caproni found in her earlier decision, courts have found that “social networking sites like Facebook.com, and online matching services like Roommates.com and Matchmaker.com,” fall within this category, so its application to Grindr is not controversial.

Trying to get around this, the lawyers argued that Grindr is providing a defective product and is misrepresenting the safety of its site for users, but the court found that Grindr’s Terms of Service published on its site provide adequate warnings.  “The district court determined that there was no material misrepresentation by Grindr because the allegedly misleading statements identified in the Amended Complaint – Grindr’s Terms of Service and its ‘community values page’ – do not represent that Grindr will remove illicit content or take action against users who provide such content,” wrote the court of appeals, “and the Terms of Service specifically disclaim any obligation or responsibility to monitor user content.”

The court said that even if it assumed that Herrick reasonably relied on assurances when he created his own Grindr account in 2011, “his claim would fail for lack of causation.” That’s because after he met his ex-boyfriend in 2015, he deactivated his Grindr account, long before the harassment following their breakup occurred.  “Herrick therefore could have suffered the exact same harassment if he had never seen the Terms of Service or created a Grindr account,” wrote the court, “so his injury is not a direct and proximate result of his reliance on (alleged) misrepresentations.”

Furthermore, Grindr’s Terms of Service were full of disclaimers for any responsibility for what users of the service posted there, which makes any reliance claim not credible.

Ultimately, said the court, quoting from a decision by the San-Francisco-based 9th Circuit Court of Appeals, under Section 230 an interactive computer service “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.”

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.