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.
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.