A Grindr LLC user is asking the U.S. Supreme Court to hear a case in which lower courts have ruled the Communications Decency Act shields the company from liability for alleged harassment that occurred through the company’s dating app.
Matthew Herrick is petitioning the high court to review a U.S. Court of Appeals for the Second Circuit ruling tossing his allegations that the app lacked safety features to prevent fake profiles, and that it doesn’t warn users the app could be used to harass them.
The case gives the Supreme Court a chance to weigh in on the extent that Section 230 of the two-decade-old website liability law shields companies against “failure to warn” claims. Lawmakers have been scrutinizing Section 230 in recent months, weighing possible changes to a law that immunizes tech companies from liability for third-party content on their platforms.
The lack of clarity around the law’s scope has led many courts to give internet companies “an almost absolute immunity” from claims that their products harmed people, Herrick said in his Aug. 7 Supreme Court petition.
“As this case demonstrates, in 2019 this is a matter of life and death for victims of stalking targeted by computer technologies with functionalities unimagined when Congress passed CDA § 230(c)(1) in 1996,” Herrick said.
A Grindr representative didn’t immediately respond to a request for comment.
Herrick alleged that his ex-boyfriend created fake Grindr profiles of him, with photos, and that hundreds of app users showed up at his home and workplace as a result. Herrick sued Grindr for negligence, false advertising, deceptive business practices, and product liability.
The Second Circuit in March affirmed a lower court’s dismissal of the claims under Section 230. Herrick’s claims were linked to Grindr’s failure to edit or remove the fake profiles—traditional editorial functions protected under the law, the appeals court said in an unpublished opinion.
Herrick is arguing that courts have failed to clearly distinguish between an internet company’s publication of third-party content and its own conduct, Herrick said in his petition. Courts have reached conflicting conclusions about the law’s scope as a result, he said.
The U.S. Court of Appeals for the Ninth Circuit previously weighed in on the issue. It held, in Doe 14 v. Internet Brands Inc., that Section 230 didn’t bar claims that a modeling website failed to warn users that two men used its site to target women for sexual assault. The Ninth Circuit said in its 2016 opinion that the plaintiff didn’t seek to hold the website liable for user content because the two men didn’t post anything to the site.
The Second Circuit, in distinguishing Internet Brands, said Section 230 didn’t protect the modeling site because the plaintiff in that case didn’t allege it published harmful content.
The law protects Grindr because Herrick’s failure-to-warn claim is “inextricably linked” to the app’s alleged failure to remove offensive content posted by Herrick’s ex-boyfriend, the Second Circuit said.
C.A. Goldberg PLLC and Tor Ekeland Law PLLC are representing Herrick.
The case is Herrick v. Grindr LLC, U.S., petition for review filed 8/7/19.