Products Liability Law Daily High Court input sought on Internet provider tort immunity under the Communications Decency Act
Thursday, August 15, 2019

High Court input sought on Internet provider tort immunity under the Communications Decency Act

By Georgia D. Koutouzos, J.D.

Social networking companies should be held legally accountable for their applications’ defects and failure to warn of the risks thereof, the petitioner asserts, arguing that the CDA was meant to protect against traditional publication torts such as defamation and not to provide blanket immunity from non-publication tort and products liability claims.

A man against whom the gay dating application Grindr had been weaponized by a spurned suitor is asking the U.S. Supreme Court to clarify the extent to which the Communications Decency Act (CDA) immunizes providers of social networking applications from their apps’ misuse, after a federal appellate panel affirmed a New York district court’s dismissal of his design/manufacturing defect and failure to warn claims against Grindr’s developer (Herrick v. Grindr LLC, August 7, 2019).

An individual had downloaded Grindr—a web-based dating application for gay and bi-sexual men—but had actively stopped using it when he began a relationship with someone. After the relationship ended on bad terms, the ex-boyfriend began impersonating the user on Grindr by setting up profiles wrongly portraying the user’s interests and indicating that he was looking for partners to meet him at his location for sex. Grindr then directed over 1,100 strangers to the user’s home and workplace with the algorithmic GPS precision enabled by modern smartphones.

Underlying actions. The user reported the application’s targeting of him and his resultant stalking by a potential suitor to Grindr LLC at least 50 times, including the sending of cease-and-desist letters and a court order of protection against the stalker. After the company failed to take any action, the user filed suit seeking an injunction ordering the application to stop its targeting of him. His lawsuit also asserted products liability claims alleging that the design of the Grindr application’s software was negligently and defectively designed and manufactured because it permitted the harassment he had been suffering by failing to incorporate safety features preventing a user’s impersonation by another. Maintaining that the application is responsible for the impersonating profiles, he also contended that Grindr LLC was on notice of the potential misuse of the app but failed to warn users of those risks.

The lawsuit was removed to New York federal court, which ultimately granted Grindr’s motion to dismiss the user’s claims on the basis that the CDA immunized the company from an app user’s products liability, negligent design, and failure to warn claims [see Products Liability Daily’sJanuary 26, 2018 analysis]. The user appealed the district court’s decision, and a panel of the U.S. Court of Appeals for the Second Circuit issued a summary order affirming the district court’s dismissal of the user’s complaint.

Statutory immunity. Section 230(c)(1) of the CDA states that: "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," with "interactive computer service" defined under the statute as "any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions," and "information content provider" defined as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet, or any other interactive computer service."

Questions presented. Noting that the U.S. Supreme Court never has ruled on the proper scope of §230(c)(1) and that GPS-tracking Smartphones, Google, and Facebook did not exist when Congress passed the CDA, the user contends that lower courts have judicially expanded the scope of the statutory protection far beyond its text and intent into a near absolute immunity for Internet companies. Furthermore, the fact-intensive nature of the CDA §230(c)(1) eligibility inquiry, due to the complexity of modern computer functionality, is another reason that High Court consideration is warranted in order to make clear that the invocation of §230(c)(1) is an affirmative defense, the user argues.

Accordingly, the petition raises the following questions:

  1. Does the Communications Decency Act §230(c)(1), which protects interactive computer services from liability for traditional publication torts when they publish third party content, prevent well pleaded causes of action for non-publication torts—such as product liability, negligence, fraud, and failure to warn—as a matter of law?
  2. Whether, as the majority of the Federal Appellate Circuit Courts holds, invocation of the Communications Decency Act §230(c)(1) is an affirmative defense and therefore inappropriate for resolution at the motion to dismiss stage?

The petition is No. 19-192.

Attorneys: Tor Ekeland (Tor Ekeland Law, PLLC) and Carrie A. Goldberg (C.A. Goldberg, PLLC) for Matthew Herrick.

Companies: Grindr LLC; Grindr Holdings, Inc.; Grindr Holding Co.

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