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The Second Circuit Reaffirms Section 230’s Broad Immunity

Products Liability, Negligence, and  Emotional Distress Claims Barred by Statute

By Daniel P. Waxman and Courtney J. Peterson

On March 27, 2019, the Second Circuit issued its decision in the highly publicized and monitored case, Herrick v. Grindr LLC, 2019 WL 1384092. The Court affirmed the district court's dismissal of Herrick's products liability, negligence, intentional infliction of emotional distress and negligent infliction of emotion distress claims as barred by Section 230 of the Communications Decency Act ("CDA"), and, in doing so, reaffirmed the intention of Congress to broadly interpret Section 230 immunity.

Background

The Grindr App ("App") is a digital social networking application designed to provide a "safe space" for gay, bisexual, trans and queer people to connect. Plaintiff Matthew Herrick ("Herrick") was a user of the App between 2011 and 2015, until he deleted it following his commencement of a relationship with an individual who he met through the App. Herrick sued Grindr LLC, KL Grindr Holdings Inc. and Grindr Holding Company, claiming that after Herrick and his boyfriend ended their relationship, Herrick's boyfriend used the App to begin a campaign of harassment, creating impersonating Grindr profiles of Herrick, and using those profiles to invite other Grindr users to Herrick's home and workplace to engage in sexual activities.

Herrick alleged claims for products liability, failure to warn, negligence, promissory estoppel, fraud, violation of N.Y. Gen. Bus. Law § 349 (deceptive practices) and §§ 350 and 350-a (false advertising), intentional infliction of emotional distress, negligent infliction of emotional distress and negligent misrepresentation. Herrick's claims were rooted in three themes: (1) the App is a defectively designed and manufactured product because it lacks built-in safety features to block or remove his ex-boyfriend's impersonating profiles, messages, or photographs; (2) Grindr misled him into believing it could ban impersonating profiles or other harassing content; and (3) Grindr has wrongfully refused to search for and remove impersonating profiles. Defendants moved to dismiss on the grounds that all of Herrick's claims were barred by Section 230, or were otherwise improperly pled.

The District Court granted defendants' motion to dismiss, finding that Herrick's products liability, negligence, intentional infliction of emotional distress and negligent infliction of emotional distress claims were barred by Section 230, and that Herrick's representation-based claims failed, inter alia, due to a lack of any misrepresentations and lack of causation.

Second Circuit Opinion

The Second Circuit affirmed the District Court's decision, holding that "Herrick's product 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.'"

The Court rejected Herrick's argument that the App is not an interactive computer service ("ICS"). Citing the district court, the Court noted that "courts have repeatedly concluded that the definition of an ICS includes 'social networking sites like Facebook.com, and online matching services like Roommates.com and Matchmaker.com,' which, like Grindr, provide subscribers with access to a common server."

The Court likewise rejected Herrick's argument that his claims are not based on third-party content, but rather on Grindr's "management of its users." The Court found his ex-boyfriend's "online speech is precisely the basis of his [products liability] 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."

The Court found that Herrick's contention that Grindr created its own content by way of the App's publication of geolocation information of users "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.'" Thus, any location information was provided by Herrick's ex-boyfriend as it was undisputed that Herrick was no longer a user of the App at the time of the harassment.

The Court also rejected Herrick's argument that his claims were based on Grindr's design and operation of the App rather than on Grindr's role as a publisher of third-party content. As the District Court observed, "Grindr's alleged lack of safety features 'is only relevant to Herrick's injury to the extent that such features would make it more difficult for his former boyfriend to post impersonating profiles or make it easier for Grindr to remove them.' It follows that the manufacturing and design defect claims seek to hold Grindr liable for its failure to combat or remove offensive third‐party content, and are barred by § 230." This is a powerful endorsement of decisions such as the First Circuit's in Doe v. Backpage which reject plaintiffs' attempts to circumvent § 230 by focusing on the design of the app or website.

The Court disagreed with Herrick's argument that his failure-to-warn claims were not covered by § 230 based on Doe v. Internet Brands. The Court distinguished Internet Brands on the ground that it did not involve an allegation of the defendant's website transmitting the harmful content. The Court included a powerful response to failure-to-warn workarounds to

§ 230 in stating: "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." The Court added that any failure-to-warn claim failed for lack of causation because Herrick deactivated the Grindr account over a year before any impersonation or harassment.

The Court found that Herrick's claims premised on Grindr's allegedly inadequate response to his complaints were barred "because they seek to hold Grindr liable for its exercise of a publisher's traditional editorial functions."

The Court held that to the extent Herrick's claims were premised on Grindr's geolocation feature, they were similarly 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."

The Court also affirmed dismissal of Herrick's claims based on statements in Grindr's Terms of Service. The Court found that the statements "do not represent that Grindr will remove illicit content or take action against users who provide such content, and the Terms of Service specifically disclaim any obligation or responsibility to monitor user content." The Court additionally held that the claims failed for lack of causation: "Herrick therefore could have suffered the exact same harassment if he had never seen the Terms of Service or created a Grindr account; so his injury is not a 'direct and proximate result of his reliance on [the alleged] misrepresentations.'"

Herrick v. Grindr LLC is an impactful decision as it is only the Second Circuit's third foray into addressing § 230. In issuing its opinion, the Second Circuit reaffirmed § 230's broad immunity for the content of bad actors, against the backdrop of cases such as Daniel v. Armlist, LLC, 2018 WL 1889123 (Wis. App. Ct. Apr. 19, 2018), which have attempted to chip away at the statute's potency. It provides one more circuit decision rejecting the efforts to work around § 230 by arguing that an app or website is defectively designed.

Daniel P. Waxman and Courtney J. Peterson, Bryan Cave Leighton Paisner LLP in New York represented Grindr LLC and KL Grindr Holdings, Inc., and Moez M. Kaba, Hueston Hennigan LLP in Los Angeles represented Grindr Holding Company. Plaintiff was represented by Tor B. Ekeland, Tor Ekeland Law, PLLC, Brooklyn, NY and Carrie A. Goldberg of C. A. Goldberg, PLLC, Brooklyn, NY.

 
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