Court: District Court, S.D. Illinois; January 24, 2018; Federal District Court
Grindr, LLC, a dating app for gay and bisexual men, is facing a lawsuit from former user Matthew Herrick, who alleges he was a victim of catfishing by his ex-boyfriend. This ex-boyfriend created false Grindr profiles portraying Herrick as interested in various sexual activities, including non-consensual scenarios, which led to hundreds of users attempting to contact Herrick at his home and workplace. Herrick claims 14 causes of action against Grindr, asserting that the app is defectively designed and lacks safety features, misled him about its ability to handle impersonation, and wrongfully failed to remove the fake profiles.
Grindr and its parent companies have moved to dismiss the case, arguing that Section 230 of the Communications Decency Act (CDA) provides immunity for online platforms regarding user-generated content. The court agrees, stating that Herrick's product liability and removal claims rely on attributing user-created content to Grindr, which is barred by the CDA. Herrick's claims related to misrepresentation also fail, as he has not demonstrated any misleading statements made by Grindr or a causal link to his injuries.
Herrick joined Grindr in May 2011 and matched with his ex-boyfriend in June 2015, later deactivating his account when their relationship became exclusive. After their breakup, the ex-boyfriend began impersonating Herrick in October 2016, attracting approximately 1,100 responses from users, facilitated by Grindr's messaging and location-sharing features.
Herrick accuses Grindr of enabling harassment through its geolocation features, which allegedly directed users to his home and work despite the app being uninstalled. He claims to have reported impersonating accounts to Grindr around 100 times, receiving only automated responses. The Amended Complaint asserts that Grindr lacks critical safety features, such as effective image recognition, keyword searches for messages, and the ability to block IP spoofing or VPNs, which could mitigate impersonation risks. Herrick argues that Grindr could implement geofencing to identify and restrict impersonating accounts linked to his or his former boyfriend's address. He believes Grindr is aware of potential misuse but failed to inform users about the risks associated with location exposure, contrary to its advertising and terms of service, which promise user protection from harassment and prohibit various abusive behaviors.
Herrick filed his lawsuit on January 27, 2017, citing negligence, deceptive business practices, emotional distress, failure to warn, and misrepresentation. Following a temporary restraining order issued by the state court, Grindr removed the case to federal court, which later denied Herrick's request to extend the order. The court determined that Herrick's claims were either barred by Section 230 of the Communications Decency Act or lacked merit, concluding that Grindr's role in creating impersonating profiles was limited to neutral assistance and not tortious conduct. Therefore, Herrick's claims, based on Grindr's failure to monitor and remove content, are likely shielded by the CDA.
Herrick's claims against Grindr for deceptive practices, false advertising, and misrepresentation are unlikely to succeed due to a lack of causal connection between Grindr's 2011 representations and the harassment Herrick experienced in 2016 and 2017. Herrick's amended complaint, filed on March 31, 2017, intensifies his assertion that Grindr is responsible for impersonating profiles, arguing that the app is poorly designed and inadequately managed to prevent misuse. In addition to prior claims, the amended complaint introduces allegations of products liability and negligent design, alongside new claims of promissory estoppel, fraud, and copyright infringement concerning the unauthorized use of his photograph.
Grindr has moved to dismiss the case, asserting that most claims are barred by Section 230 of the Communications Decency Act (CDA), as the impersonating profiles were created by Herrick's former boyfriend, not Grindr. The company contends that it cannot be held liable for failing to control content generated by users. Furthermore, Grindr argues that Herrick's misrepresentation claims fail due to the absence of any specific commitment by Grindr to remove impersonating content, and the temporal gap between their 2011 statements and Herrick's later injuries.
Additionally, Grindr Holdings has joined the motion to dismiss, citing lack of personal jurisdiction, as the amended complaint does not establish relevant contacts with the forum. To survive the motion to dismiss under Rule 12(b)(6), Herrick must present sufficient factual allegations that support a plausible claim for relief. The court will consider all factual allegations as true and draw reasonable inferences in favor of Herrick, but the claims must rise above mere speculation. Grindr's defense includes the assertion that Herrick's products liability and negligent design claims are also barred by the CDA, given the allegations of insufficient software protections against harassment. The court agrees with Grindr on these points.
Herrick's claims against Grindr regarding design defects and failure to warn are linked to Grindr's role in moderating content, which is protected under Section 230 immunity. Section 230 states that providers of interactive computer services (ICS) cannot be considered publishers of third-party content. Three elements must be satisfied for immunity: 1) the defendant is an ICS; 2) the claim is based on information from another content provider; and 3) the claim treats the defendant as a publisher or speaker of that information.
The court establishes that Grindr qualifies as an ICS, as it allows multiple users access to a common server, similar to other recognized platforms like Facebook. Herrick's claims are based on content from his former boyfriend, satisfying the second element. An ICS is not held liable for content unless it directly contributes to its unlawfulness. Grindr's features, such as categorization tools for user preferences, are considered 'neutral assistance' and do not constitute unlawful content creation.
The third element is met because Herrick's claims imply that Grindr is liable as a publisher of impersonating profiles. 'Publication' encompasses the choice to include, communicate, or fail to remove information from third parties, and courts interpret this broadly. The court concludes that Herrick's claims necessitate reference to third-party content, thereby invoking Section 230 protections for Grindr.
Courts must determine if the plaintiff's alleged duty violation by the defendant stems from the defendant's role as a 'publisher or speaker.' Herrick's claim against Grindr, asserting liability due to inadequate protections against impersonation, parallels a rejected theory in Doe v. MySpace, Inc., where a minor's guardians sued MySpace for failing to prevent adult-child communications. The Fifth Circuit dismissed this claim, stating it merely implicated MySpace's liability for publishing such communications. Herrick's claims similarly hinge on Grindr's missing safety features and its ability to remove impersonating profiles, with the features' existence being relevant only to the extent they would impact Grindr's removal capabilities.
Herrick's focus on Grindr's 'server-side software' does not alter the outcome, as it aligns with the Backpage.com case, where victims claimed the site's structure facilitated illegal activities due to its lack of verification and safety measures. The court finds the First Circuit's reasoning from Backpage.com applicable to Herrick's negligent design claims. Herrick's claims, based on missing features like geolocational tools, connect to Grindr's ability to manage content, which is an editorial function tied to its publisher status.
Moreover, Herrick's failure to warn claims necessitate treating Grindr as the 'publisher' of impersonating profiles, as this duty implies a responsibility to supervise content. The proposed warning from Herrick is needed because Grindr does not actively police or remove objectionable content. This indirect liability hinges on Grindr's choice to publish impersonating profiles without pre-review. The court also argues that requiring a warning alongside or for each profile is akin to editing third-party content, and the Communications Decency Act (CDA) applies to both individual content and systemic website architecture.
Herrick contends that an exception to Section 230(c) exists, or at least a notion of 'heightened accountability,' when an Interactive Computer Service (ICS) is aware that its platform is being utilized for criminal activities or sexual violence. This argument is primarily based on the case Doe v. Internet Brands, Inc., which involved a networking website for models. In that case, two men contacted Doe for a fake modeling shoot, subsequently raped her, and recorded the act. Doe sued the website, alleging it was aware of the men's prior use of the site to find victims and failed to warn users of the potential risk. The Ninth Circuit ruled that the Communications Decency Act (CDA) did not protect the ICS from liability for negligent failure to warn, noting that the perpetrators did not post content on the site, and the website's monitoring was not relevant. The court determined that the CDA does not grant immunity for failure to warn claims arising from non-user-generated content.
In contrast, Herrick's claim involves warnings about user-generated content, specifically related to impersonating profiles on Grindr. He argues that Grindr should inform users of the potential for impersonation, criticize the ineffectiveness of its reporting features, and address its lack of technology to prevent abuse. This proposed warning is fundamentally linked to user-generated content, distinguishing it from the Internet Brands case.
Furthermore, the CDA also precludes Herrick's claims of negligence, intentional infliction of emotional distress (IIED), and negligent infliction of emotional distress (NIED). His claims arise from Grindr's algorithmic matching of users and its insufficient response to his complaints of abuse and impersonation. The claims fail because they rely on Grindr's role as a publisher, which the CDA protects by barring liability for the failure to control or remove content posted by users.
Grindr cannot be treated differently as a smartphone app compared to a website regarding liability under the legal standards for intentional infliction of emotional distress (IIED). Herrick's allegations do not meet the required elements for IIED under New York law, which necessitates showing extreme and outrageous conduct that intentionally or recklessly causes severe emotional distress. While the impersonation profiles could qualify as extreme conduct, Grindr did not create these profiles; its actions were limited to providing neutral assistance to users. A mere failure to respond effectively to harassment complaints does not rise to the level of outrageous conduct necessary for IIED claims. Herrick's claim regarding Grindr's involvement is not supported by evidence comparable to cases where defendants actively encouraged harassment. Furthermore, Grindr had reasonable justification for not removing the impersonating profiles, believing it was not obligated to do so.
Regarding Herrick's claims of fraud, negligent misrepresentation, promissory estoppel, deceptive practices, and false advertising, these claims are based on the assertion that Grindr misled users about its content monitoring capabilities. Grindr seeks dismissal of these claims on the grounds that the Communications Decency Act (CDA) may bar them, and also that Herrick has failed to adequately plead the essential elements of these claims. Although the court does not need to determine the CDA's applicability, the claims are insufficiently detailed. Specifically, fraud claims require five elements and must be pleaded with particularity under Rule 9(b) of the Federal Rules of Civil Procedure, which necessitates identifying the fraudulent statements, their speaker, and the context in which they were made. Herrick's Amended Complaint points to two sets of potentially misleading statements but lacks the necessary specificity.
Grindr's community values page asserts the use of digital and human screening tools to protect users from harmful behaviors. The Amended Complaint cites the Terms of Service, which warn that user content may be deleted and accounts disabled for violations. Herrick claims these statements mislead users into believing Grindr will strictly enforce its policies against abuse, while in reality, Grindr does not actively monitor or ban abusive accounts. The community values page does not promise rigorous enforcement, merely indicating the existence of protective tools. Similarly, the Terms of Service reserve the right to remove illicit content but do not guarantee such action. Provisions in the Terms of Service place the onus on users not to post impermissible content and explicitly state that Grindr is not obligated to monitor user content. Given these disclaimers, the court finds it unreasonable for any user to assume Grindr has committed to removing improper content. Consequently, Herrick's claim of reasonable reliance on alleged misstatements is deemed implausible, as reliance cannot be justified when contradicting statements are present in the Terms of Service.
Grindr retains the right to monitor user content but is not obligated to do so, and it does not take responsibility for inappropriate user-generated content. The court finds it unreasonable for Herrick to assume that Grindr would enforce strict measures against illicit content based on the Terms of Service, especially given specific disclaimers regarding Grindr's lack of responsibility for monitoring. The community values page is deemed too vague to be relied upon, lacking clear definitions of its screening tools and protections. Herrick's claims of injury are not sufficiently linked to Grindr's alleged misstatements, as proximate cause requires that the injury is a foreseeable consequence of the misrepresentation. Herrick, who stopped using Grindr in 2015, asserts that his initial reliance on the Terms of Service led to his injuries, but his harassment occurred years later, suggesting his connection to Grindr is tenuous. His arguments about proximate cause in relation to misrepresentation claims are inadequately addressed, mainly focusing instead on negligence claims. Ultimately, the court concludes that Herrick's decision to join Grindr does not substantiate a direct causal link to the harassment he experienced later.
Grindr's design choices and its decision not to monitor user-generated content in 2016 and 2017 are protected by the Communications Decency Act (CDA), which directly affects Herrick's injury claims. The court concludes that Herrick fails to establish a plausible misstatement or reasonable reliance on such a misstatement, and that any alleged misstatements do not proximately cause his injury. Herrick's promissory estoppel claim is also rejected due to the absence of a clear and unambiguous promise from Grindr. The elements of promissory estoppel require a clear promise, reasonable reliance, and resulting injury; Herrick's claims do not meet these criteria since Grindr's terms do not constitute a promise to monitor content. Additionally, Herrick's reliance on Grindr's terms is deemed unreasonable given explicit disclaimers regarding content policing. Herrick's negligent misrepresentation claim similarly fails, lacking evidence of a false representation, reasonable reliance, or a special relationship that would obligate Grindr to provide accurate information. The court emphasizes that Herrick has not adequately shown proximate causation or the existence of a special relationship based on the established criteria.
A special relationship of "trust or confidence" is necessary to establish a duty to speak with care in legal claims. Herrick does not assert such a relationship, and the interaction between the parties is deemed an arm's length transaction, similar to the findings in Beckman v. Match.com, where no special relationship was found between the platform and its users. Courts have consistently ruled that mere commercial transactions do not create special duties, unless accompanied by detailed representations or professional expertise, as seen in Eidelman and Fallman. Grindr's knowledge of its monitoring practices does not suffice to demonstrate special expertise. Furthermore, Herrick's claims lack factual support indicating that Grindr was aware of his reliance on the community values page or Terms of Service, which included disclaimers against reliance. Consequently, the court concludes Herrick has not adequately alleged a special relationship.
Regarding deceptive practices and false advertising, Herrick's claims fail as he has not shown that a reasonable consumer would be misled by Grindr's statements. Under New York's General Business Law Section 349, a plaintiff must demonstrate that the act was consumer-oriented, materially misleading, and resulted in injury. Herrick's false advertising claim additionally fails due to insufficient allegations of reasonable reliance, as required under Section 350.
Lastly, Herrick's copyright infringement claim, based on impersonating profiles using his photos, is inadequately pleaded.
To plead copyright infringement, a plaintiff must allege four elements: (1) identification of the specific original works at issue, (2) ownership of the copyrights in those works, (3) that the copyrights have been registered according to statutory requirements, and (4) the acts and timeframe of the defendant's infringement. In the case of Zuma Press, Inc. v. Getty Images, the court noted that a plaintiff's pending applications for copyright registration do not sustain an infringement claim until the applications are approved or rejected by the Copyright Office. Herrick has filed four copyright registration applications, which remain unacted upon by the Copyright Office. The consensus in the Southern District of New York is that failure to meet this registration requirement precludes adjudication on the merits and necessitates dismissal without prejudice. Consequently, Herrick's complaint is to be dismissed without prejudice, allowing him to amend it to reflect the status of his copyright applications.
This is Herrick's second attempt to state a claim against Grindr, but he has not provided a proposed second amended complaint, making his request for leave to amend inadequate. Courts require that a request to amend must include the proposed amended pleading, and vague requests are deemed insufficient. As a result, the court grants the defendants' motions to dismiss all claims except for Herrick's copyright claim, which is dismissed without prejudice. If Herrick wishes to file an amended complaint to address the deficiencies in his copyright claim, he must do so by January 31, 2018. The court also instructs the Clerk to close the pending motions. Additionally, the excerpt notes a definition of "catfish" as someone who creates a false online profile for deceptive purposes, which contradicts Herrick's previous explanation during oral arguments regarding his motion for a temporary restraining order.
Counsel confirmed that Grindr does not possess Herrick's location since the app is not on his phone; users of fake profiles receive Herrick's location through messages from his former boyfriend impersonating him. The Amended Complaint argues that similar apps can quickly remove offensive content and block users more effectively than Grindr, which can only act on individual reports from Herrick. The Court refrains from addressing personal jurisdiction over KL Grindr and Grindr Holdings, as it finds Herrick's claims insufficient on other grounds. The Amended Complaint lacks specific allegations against KL Grindr or Grindr Holdings, and Herrick's group pleading suggests collective responsibility among the defendants for the product. Herrick's assertion that Grindr's software is defective contradicts his counsel's admission of Grindr being an interactive computer service (ICS). New York law treats negligent failure to warn and products liability failure to warn as a singular cause of action. The Court argues that warnings about third-party content constitute editing, similar to disclaimers in newspapers. While acknowledging a potential distinction in liability for standardized software, the Court does not rule on Grindr's claim that it is not a "product" under products liability law, noting a consensus that strict liability applies to downloaded software but not to expressive content.
Herrick's primary concern revolves around impersonating profiles on Grindr, which are considered expressive content not created by Grindr. The Court indicates that the Communications Decency Act (CDA) applies to Herrick's grievances regarding Grindr's software features, negating the need to evaluate whether these features qualify as "products" for strict products liability. Herrick's negligence claims differ from those related to defective design and failure to warn. The Terms of Service include a California choice of law provision for disputes related to Grindr, although both parties reference New York law, which the Court will apply, acknowledging that litigation conduct may imply acceptance of a different jurisdiction's law.
The Court observes that the legal elements of some of Herrick's claims vary significantly under California law, an issue not raised by either party. Additionally, the Terms of Service contain an arbitration clause relevant to Herrick's claims. The standard for negligent infliction of emotional distress does not require proof of "extreme and outrageous" conduct but does necessitate establishing a specific duty owed to the plaintiff, direct negligence causing emotional harm, and a reliable claim. However, Herrick's claims are ultimately barred by the CDA.
The Court notes that Herrick's misrepresentation claims relate to Grindr’s own statements, which could be seen as separate from user-generated content. Although Herrick alleges that Grindr failed to police content, his claims do not succeed on their merits. The New York Court of Appeals has not clarified whether proximate cause is necessary for claims under General Business Law Sections 349 or 350, but since Herrick's claims fail on other grounds, this issue need not be resolved. Herrick has not countered Grindr's argument regarding his copyright claim, which lacks a clear infringement theory or specifics on how Grindr infringed his copyrights. The Court emphasizes that ownership of a site does not automatically incur copyright liability for user-posted content and cautions Herrick that any amendments to his copyright claims must rectify existing deficiencies.
