306 F. Supp. 3d 579
S.D. Ill.2018Background
- Herrick is a former Grindr user who alleges his ex-boyfriend created fake Grindr profiles impersonating him starting in October 2016, soliciting hundreds of men to visit Herrick's home/work and encouraging sexual/violent role-play.
- Herrick says Grindr's app lacks safety features (photo-duplicate detection, IP/MAC blocking, keyword scanning, geofencing) and that Grindr ignored ~100 reports of the impersonating accounts, sending only automated responses.
- He sued Grindr and its corporate parents in state court (original complaint early 2017), the case was removed to federal court, and after a TRO hearing he filed an amended complaint adding product-liability, negligent-design, failure-to-warn, misrepresentation, deceptive-practices, and copyright claims.
- Defendants moved to dismiss under Fed. R. Civ. P. 12(b)(6), principally arguing Section 230(c)(1) of the CDA immunizes them for third-party content and that Herrick’s misrepresentation claims are insufficiently pleaded and lack proximate causation.
- The court held that, except for the copyright claim, all of Herrick’s claims are barred by Section 230 or fail on the merits; the copyright claim was dismissed without prejudice for failure to allege completed registration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Section 230 bars products-liability, negligent-design, and failure-to-warn claims based on app architecture and missing safety features | Herrick: missing/defective server-side safety features made Grindr responsible for impersonation harms | Grindr: claims seek to hold Grindr liable for third-party content and editorial/publishing choices—thus barred by CDA §230 | Court: CDA bars these claims as they treat Grindr as publisher/speaker of user content; features are neutral assistance and claims implicate publishing functions |
| Whether Section 230 bars negligence, IIED, NIED claims premised on matching algorithm and failure to remove impersonating profiles | Herrick: Grindr negligently matched/directed users and inadequately responded to reports | Grindr: such claims are premised on third-party content and Grindr’s failure to remove it, so CDA immunity applies | Court: CDA bars these claims; even absent CDA, IIED fails for lack of extreme/outrageous conduct by Grindr |
| Whether Grindr’s statements (community values, Terms of Service) support fraud, negligent misrepresentation, promissory estoppel, or deceptive-practices claims | Herrick: Grindr’s site representations and TOS led him reasonably to rely on Grindr to police and remove abusive content | Grindr: TOS disclaim any obligation to monitor/remove content; statements do not promise a duty to remove; reliance and causation are lacking | Court: Misrepresentation claims fail on the merits—statements do not unambiguously promise monitoring; disclaimers make reliance unreasonable; injuries too attenuated from 2011 statements to 2016–17 harms |
| Copyright infringement for unauthorized use of Herrick’s photos in impersonating profiles | Herrick: alleges his photos appear in impersonating profiles and that he filed registration applications | Grindr: user-posted content does not create per se liability; statutory prereq (registration) not satisfied | Court: Copyright claim dismissed without prejudice because registrations were pending (not yet granted); plaintiff may move to amend after registration |
Key Cases Cited
- Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997) (Section 230 treats interactive service providers as non-publishers of third-party content)
- Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9th Cir. 2003) (matching-site features that merely classify user input constitute neutral tools and do not make site a content developer)
- Fair Hous. Council v. Roommates.com, LLC, 521 F.3d 1157 (9th Cir. 2008) (distinguishing neutral tools from site design that materially contributes to unlawful content)
- Doe v. MySpace, Inc., 528 F.3d 413 (5th Cir. 2008) (claims premised on failure to add safety features are another way to allege liability for publishing third-party communications and fall within Section 230)
- Barnes v. Yahoo!, Inc., 570 F.3d 1096 (9th Cir. 2009) (publication includes decisions to review, edit, and remove third-party content)
- FTC v. LeadClick Media, LLC, 838 F.3d 158 (2d Cir. 2016) (framework for analyzing Section 230 immunity elements)
- Backpage.com, LLC v. McKenna (and related), 817 F.3d 12 (1st Cir. 2016) (site architecture and omission of safety features can implicate editorial choices—used to analyze scope of §230 but distinguished where features are neutral)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (pleading standard: plausibility required)
- Bell Atlantic v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must raise claim above speculative level)