Often hailed as the law that gave us the modern Internet, Section 230 of the Communication Decency Act generally protects online platforms from liability for content posted by third parties. Many commentators, including us here at Socially Aware, have noted that Section 230 has faced significant challenges in recent years. But Section 230 has proven resilient (as we previously noted here and here), and that resiliency was again demonstrated by the Second Circuit’s recent opinion in Herrick v. Grindr, LLC.
As we noted in our prior post following the district court’s order dismissing plaintiff Herrick’s claims on Section 230 grounds, the case arose from fake Grindr profiles allegedly set up by Herrick’s ex-boyfriend. According to Herrick, these fake profiles resulted in Herrick facing harassment from over 1,000 strangers who showed up at his door over the course of several months seeking violent sexual encounters.
Herrick sued Grindr, claiming that the company was liable to him because of the defective design of the app and the failure to police such conduct on the app. Specifically, Herrick alleged that the Grindr app lacked safety features that would prevent bad actors such as his former boyfriend from using the app to impersonate others. Herrick also claimed that Grindr had a duty to warn him and other users that it could not protect them from harassment stemming from impersonators.
Herrick asserted a large number of claims, including negligence, intentional infliction of emotional distress, negligent infliction of emotional distress, failure to warn, failure to respond, product liability and negligent design, copyright infringement, fraud, negligent misrepresentation, promissory estoppel, and false advertising. The case attracted considerable attention, including concern from social media companies, due to the prospect of platform operators being held liable for the bad conduct of their users, with some commentators theorizing that the case could change the legal landscape of tech and free speech.
Grindr moved to dismiss Herrick’s suit, on the grounds that all his claims (other than the copyright infringement claim) were barred under Section 230. On January 25, 2018 a federal district court in New York granted Grindr’s motion to dismiss and Herrick appealed shortly thereafter. Unfortunately for Herrick, and for those who would advocate for a narrow interpretation of Section 230, the Second Circuit sided with the trial court, ruling against Herrick in a 3-0 Summary Order.
Despite Herrick’s attempts to avoid the application of Section 230, the Second Circuit applied a standard three-part Section 230 analysis, noting “[i]n applying the statute, courts have broken it down into three component parts, finding that it shields conduct if the defendant [A] is a provider or user of an interactive computer service, [B] the claim is based on information provided by another information content provider and [C] the claim would treat the defendant as the publisher or speaker of that information.”
Interactive Computer Service
The court cited well-established authority to reaffirm that the definition of interactive computer service includes social networking platforms and online matching sites that, like Grindr, provide users with access to a common server. Furthermore, Herrick’s Amended Complaint expressly conceded that Grindr was an interactive computer service.
Claim Arises From Actions of a Third-Party Content Provider
Herrick argued that his claims arose from Grindr’s management of it users, as opposed to specific user content. The court, however, held that Herrick’s product liability claims arose directly from the fake profiles that Herrick’s ex-boyfriend created along with specific direct messages the ex-boyfriend exchanged with other users. Thus, the court ruled, the second prong of the test was satisfied because the basis for Herrick’s claims that Grindr’s product was defective and dangerous arose directly from content provided by a third-party.
The court further reasoned that Herrick’s claims for negligence, intentional infliction of emotional distress and negligent infliction of emotional distress related in part to the app’s geolocation function. The court went on to conclude that this function was also based on information provided by a third-party, because the geolocation functions is “based on real-time streaming of a user’s mobile phone’s coordinate data,” which was provided by Herrick’s ex-boyfriend.
Publisher/Speaker of Offensive Content
The court reiterated that the core purpose of Section 230 is to bar lawsuits seeking to hold a service provider liable for conducting traditional editorial functions (e.g., deciding to publish, remove, or alter third-party content). Thus, claims premised on the fact that a service provider refused to remove offensive content produced by a third-party are barred.
Herrick again attempted to argue that his claims were premised not on these traditional editorial functions or Grindr’s role as a publisher of third-party content, but on the design and operation of the app itself—specifically, its lack of safety features. The court rejected this argument, reasoning that claims based on the “structure and operation” of an interactive computer service were barred by Section 230 because the lack of safety features reflects “choices about what content can appear on the website and in what form, which are editorial choices,” citing the First Circuit’s decision in Jane Doe No. 1 v. Backpage.com.
The court also rejected Herrick’s argument, based on Doe v. Internet Brands, that his failure to warn claim was not barred by Section 230. The court distinguished Doe v. Internet Brands, noting that in that case “there was no allegation that the defendant’s website transmitted potentially harmful content . . . [so] the defendant was therefore not an ‘intermediary’ shielded from liability under § 230,” whereas “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 . . . [and,] accordingly, is barred by § 230.”
Herrick’s Other Claims
The appeals court’s opinion focused heavily on the Sec 230 analysis, but the court also rejected Herrick’s claims for (1) failure to respond, holding that Grinder was exercising traditional editorial functions or in the alternative that it did not assist in the development of the unlawful conduct; (2) fraud and misrepresentation, holding that Grindr’s Terms of Use made no claim that Grindr would remove illicit content and this claim lacked causation; and (3) promissory estoppel, holding that this claim was barred for lack of detrimental reliance.
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While Section 230 continues to face headwinds both in the courts and legislatively, Herrick shows that the statute continues to provide robust immunity for social media sites and other platform providers and online intermediaries. Indeed, it is amazing to think that, more than 20 years after its enactment, Section 230 continues to serve its original purpose of enabling online services to thrive without the threat of crippling liability for the bad acts of their users, particularly given that today’s online services are so different from those that existed when President Clinton signed the Communications Decency Act into law in 1996. But we will undoubtedly see additional attempts to rein in Section 230, so watch this space for further developments.