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Herrick v. Grindr, LLC

Whether § 230 of the Communications Decency Act shields Grindr, a dating app, from liability for failing to remove fake profiles that used the Plaintiff’s name and likeness and posed a danger to his personal safety
  • EPIC Backs Strong Crypto and 230 Reform: In a statement to the Senate Judiciary Committee on the EARN IT Act, EPIC supported both end-to-end encryption and reform to Section 230 of the Communications Decency Act. EPIC backed the plan to establish Best Practices to limit the distribution of child sexual exploitation material, but cautioned "against recommendations that would reduce privacy and security for Internet users." EPIC pointed out that actual end-to-end encryption "protects users, promotes commerce, and ensures cybersecurity." In an amicus brief in Herrick v. Grindr, EPIC objected to a court decision that found "online platforms bear no responsibility for the harassment and abuse their systems enable." (Mar. 12, 2020)
  • Appeals Court Refuses to Find Dating App Liable in Abuse Case: A federal appellate court has refused to find a dating app liable for failing to remove a false profile that enabled abusive conduct. EPIC filed an amicus brief in Herrick v. Grindr, arguing that the law Section 230 of the Communications Decency Act was intended to "encourage internet service providers to police their platforms," not to "give platforms carte blanche to ignore harassment and abuse." EPIC explained that victims may be subjected to ongoing "psychological, social, and financial harm" if internet services are not accountable for harassment and abuse. EPIC routinely files friend of the court briefs in cases concerning emerging privacy and civil liberties issues. (Mar. 28, 2019)
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  • EPIC to Congress: Reform Section 230 » (Jul. 27, 2020)
    In a statement to the Senate Commerce Committee, EPIC supported reforms to Section 230 of the Communications Decency Act. The Committee is considering the bipartisan Platform Accountability and Consumer Trasparency (PACT) Act, which requires online platforms to give notice of their content moderation policies and to make a complaint system available, and sets deadlines by which platforms must process complaints. EPIC urged the Committee to expand the Act's provisions on injunctive relief, which currently only requires platforms to take down content if ordered by a court to do so in limited types of cases. "When a court finds that content has been posted illegally or in violation of an individual’s rights, there should be a legal mechanism to order online platforms to remove that content," EPIC said. "The bill should be amended to make clear that platforms must comply with court orders to remove content deemed unlawful regardless of the type of legal claim involved." In an amicus brief in Herrick v. Grindr, EPIC objected to a court decision that found "online platforms bear no responsibility for the harassment and abuse their systems enable."
  • Danielle Citron Testifies on Corporate Responsibility for Online Activity » (Oct. 16, 2019)
    EPIC Board Member Danielle Citron will testify today before the House Energy & Commerce Committee regarding corporate responsibility for online activity. In her written testimony, Professor Citron stated, "Section 230 should be revised to condition the legal shield on reasonable content moderation practices in the face of clear illegality that causes demonstrable harm. That would return the statute to its original purpose—to allow companies to act more responsibly, not less." In an amicus brief filed with the Second Circuit Court of Appeals last year, EPIC said that Section 230, a provision in the Communication Decency Act, was intended to "encourage internet service providers to police their platforms," not to "give platforms carte blanche to ignore harassment and abuse." Professor Citron was recently selected for the prestigious MacArthur Fellowship and is the author of Hate Crimes in Cyberspace, available at the EPIC Bookstore.
  • Grindr User Asks Supreme Court to Hear Dating App Abuse Case » (Aug. 15, 2019)
    A Grindr user has asked the U.S. Supreme Court to review a federal appellate court's refusal to find the dating app liable for failing to remove a false profile that enabled abuse. EPIC filed an amicus brief in Herrick v. Grindr, arguing that Section 230, the law the appeals court found barred liability, was intended to "encourage internet service providers to police their platforms," not to "give platforms carte blanche to ignore harassment and abuse." EPIC explained that victims may be subjected to ongoing "psychological, social, and financial harm" if internet services are not accountable for harassment and abuse. EPIC routinely files friend of the court briefs in cases concerning emerging privacy and civil liberties issues. Herrick's attorney (and EPIC Champion of Freedom Award winner) Carrie Goldberg recently published "Nobody's Victim: Fighting Psychos, Stalkers, Pervs, and Trolls."
  • Appeals Court Refuses to Find Dating App Liable in Abuse Case » (Mar. 28, 2019)
    A federal appellate court has refused to find a dating app liable for failing to remove a false profile that enabled abusive conduct. EPIC filed an amicus brief in Herrick v. Grindr, arguing that the law Section 230 of the Communications Decency Act was intended to "encourage internet service providers to police their platforms," not to "give platforms carte blanche to ignore harassment and abuse." EPIC explained that victims may be subjected to ongoing "psychological, social, and financial harm" if internet services are not accountable for harassment and abuse. EPIC routinely files friend of the court briefs in cases concerning emerging privacy and civil liberties issues.
  • Appeals Court Hears Arguments in Dating App Abuse Case » (Jan. 9, 2019)
    A federal appeals court heard oral arguments in a case about whether a dating app is liable for failing to remove a false profile that enabled abusive conduct. EPIC filed an amicus brief in Herrick v. Grindr, arguing that the relevant law was intended to "encourage internet service providers to police their platforms," not to "give platforms carte blanche to ignore harassment and abuse." EPIC explained that victims may be subjected to ongoing "psychological, social, and financial harm" if internet services are not accountable for harassment and abuse. EPIC routinely files friend of the court briefs in cases concerning emerging privacy and civil liberties issues.
  • EPIC Urges Appeals Court to Deny Immunity for Dating App that Ignores Egregious Abuse » (Jun. 1, 2018)
    EPIC has filed an amicus brief in a case about whether a dating app should be liable for failing to remove false profiles, including name and likeness, that posed a danger to personal safety. In Herrick v. Grindr, LLC, EPIC told the Second Circuit Court of Appeals that Section 230, a provision in the Communication Decency Act, was intended to "encourage internet service providers to police their platforms," not to "give platforms carte blanche to ignore harassment and abuse." EPIC emphasized that a lower court opinion "would not advance the speech-promoting policy of the statute." EPIC explained that victims may be subjected to ongoing "psychological, social, and financial harm" if Internet services are not accountable for harassment and abuse. EPIC frequently participates as amicus curiae in cases concerning emerging privacy and civil liberties issues, including hiQ Labs v. LinkedIn and Eichenberger v. ESPN.

Summary

Herrick v. Grindr, LLC, No. 18--396 concerns whether § 230 of the Communications Decency Act immunizes a dating app from liability for failing to regulate egregious and harassing conduct taking place on its platform. The New York Supreme Court entered a Temporary Restraining Order (TRO) compelling the dating app to disable impersonating profiles of the plaintiff. Afterwards, the case was moved to federal court. The Southern District of New York denied the plaintiff’s attempt to extend the New York Supreme Court’s TRO. The District Court held that § 230 of the Communications Decency Act shielded Grindr from liability on many of the charges. The Court then granted Grindr’s motion to dismiss the case. This case is now on appeal before the U.S. Court of Appeals for the Second Circuit.

Background

Factual Background

This case arose when Plaintiff Matthew Herrick’s former partner repeatedly used Grindr, a dating app, to impersonate and harass Herrick. After Herrick ended his relationship with the partner in October 2016, the partner created fake profiles impersonating Herrick on Grindr. The profiles communicated with other men on the platform, falsely informing men of Herrick’s interest in hardcore rape fantasies and role play. The partner also directed potential suitors to Herrick’s home and workplace for sexual intercourse. Herrick alleged that some of these suitors physically assaulted and threatened Herrick and his friends and co-workers. Herrick had notified Grindr of the impersonating accounts and the resulting harassment approximately one hundred times. Grindr has done nothing in response, except return reports and complaints with automated responses.

Procedural History

New York Supreme Court

Herrick filed a pro se complaint for a Temporary Restraining Order against Grindr with the New York Supreme Court on January 27, 2017. On the same day, the Supreme Court entered a TRO compelling Grindr to “immediately disable all impersonating profiles created under Plaintiff’s name or with identifying information relating to Plaintiff, Plaintiff’s photograph, address, phone number, email account or place of work.” The original complaint also included claims of intentional and negligent infliction of emotional distress, failure to warn, as well as negligent misrepresentation and deceptive business practices and false advertising under the New York General Business Law § 349-50.

U.S. District Court for the Southern District of New York

On February 8, 2017, Grindr removed the action to the Southern District of New York based on diversity jurisdiction. Herrick subsequently moved to extend the Supreme Court’s TRO, which the District Court denied, holding that § 230 of the Communications Decency Act shielded Grindr from liability on the charges of negligence, failure to warn, and negligent infliction of emotional distress.

Herrick based his claims of negligent misrepresentation and deceptive business practices and false advertising on Grindr’s advertisements which represented Grindr as a “safe space,” arguing that he originally signed up for Grindr in 2011 because he believed these representations. The District Court denied these claims as the basis for a TRO, holding that the causal nexus between Herrick’s reliance on Grindr’s representations and his injury to be too attenuated and remote.

Herrick filed an amended complaint on March 31, 2017, alleging that Grindr is responsible for impersonating profiles because users can easily manipulate and misuse the app and because Grindr has not taken adequate steps to stop the impersonating profiles. The amended complaint alleged the claims of the original complaint, as well as additional causes of action for products liability, negligent design, promissory estoppel and fraud, and copyright infringement. Grindr moved to dismiss the case, and this motion was granted with prejudice (except as applied to the copyright claim, which Herrick was given leave to amend) on January 25, 2018.

Herrick filed an appeal to the U.S. Court of Appeals for the Second Circuit on February 9, 2018.

EPIC's Interest

EPIC has a strong interest in protecting consumer privacy rights online, including social media information, and ensuring this data is not improperly disclosed to third parties. EPIC closely monitors the use of advanced tracking techniques that enable companies like Facebook and Google to track users browsing habits, collecting a wealth of personal data about users that the businesses use to develop and sell profiles or deliver targeted advertisements. EPIC has done extensive work in the areas of online tracking and behavioral profiling, including urging the FTC to limit the use of cross-device tracking, whereby companies track consumers across their smartphones, laptops, tablets, and other internet-connected devices. EPIC also supports proposals to impose technological limits on the tracking of third-party web browsing history.

EPIC has filed amicus curiae briefs in support of consumers alleging that their rights have been violated by third parties. In Smith v. Facebook, the Ninth Circuit considered whether Facebook’s tracking of users’ visits to medical websites violates California and Federal privacy laws. EPIC argued that generic notice is insufficient toe stablish meaningful consent to the detailed tracking of users’ web browsing history.

In In Re Nickelodeon, a case arising under the Video Privacy Protection Act, the plaintiffs alleged that -- children who visited the website Nickolodeon.com - were subject to tracking by Viacom, the company managing the website, and Google, and that these companies collected their personal information in connection with online views of video content. EPIC argued in its brief that the definition of “Personally Identifiable Information” (of “PII”) in the VPPA is purposefully broad to protect against the very type of privacy abuses at issue in the case.

EPIC has also previously challenged Facebook’s privacy policies—in particular their requiring that users disclose certain personal information—in a complaint with the FTC. The FTC subsequently brought legal action against Facebook for unfair and deceptive business practices, and entered into a consent decree in 2011 following EPIC’s complaint.

Legal Documents

U.S. Court of Appeals for the Second Circuit, No. 18-396

U.S. District Court for the Southern District of New York, No. 17-932

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