BY ARTHUR S. LEONARD | A federal judge in Manhattan has denied a gay man’s request to extend a temporary restraining order that a state trial court earlier issued against Grindr, the gay dating app, requiring the company to “disable” any “impersonating profile” created by a “former love interest” of the man.
In a lawsuit brought by Matthew Herrick, District Judge Valerie Caproni found that Herrick was unlikely to prevail in his case against Grindr because the company is apparently sheltered under the federal Communications Decency Act (CDA) as a “neutral” interactive computer service displaying content provided by a third party — in this case an ex of Herrick’s identified as JC.
Herrick claims that JC created fake profiles of Herrick, including his home and work address and indicating his interest in “fetishistic sex, bondage, role playing, and rape fantasies and encourage[ing] potential suitors to go to his home or workplace for sex.” Herrick alleges that “dozens of men” responded to the profiles, “some of whom have physically assaulted or threatened Plaintiff and his friends and co-workers,” though Caproni’s ruling indicates that at times Herrick has put the number of men responding at “approximately 400.”
Grindr acknowledges receiving complaints from Herrick, who said he has sent more than 50, but the company has taken no action. In his state court complaint, Herrick makes claims against Grindr for negligence, intentional and negligent infliction of emotional distress, and its misrepresentations regarding the safety of its user community.
On January 27, before Grindr succeeded in having the case removed to federal court — based on the company being headquartered outside of New York, the state where Herrick is a resident and brought the case — a state trial court ordered the company to “immediately disable” the impersonating profiles. On February 21, Herrick asked the federal court to extend the temporary restraining order, which was due to expire, but Caproni turned him down the following day.
Herrick’s problem is that despite his ability to show the harm he is suffering, federal courts, including the New York-based Second Circuit Court of Appeals, have ruled that companies like Grindr generally can’t be held liable for harm caused by content posted by its users unless it plays an active editorial role in the substance of that content. Grindr would only lose its immunity under the CDA “if it assists in the ‘development of what [makes] the content unlawful,’” Caproni found. The “neutral assistance” Grindr’s technology provides is not enough to make it liable.
“The fact that these offerings have been weaponized by a particular Grindr user does not make Grindr the creator of the allegedly tortious content,” she asserted. “Moreover, to the extent Grindr has ‘contributed’ to the harassment by providing functionality such as geo-location assistance, that is not what makes the false profiles tortious.”
Caproni specifically rejected any analogy to the 2008 roommates.com case, where a federal appeals court in California concluded that app lost its CDA immunity because it elicited personal information about potential roommates that assisted those posting listings to violate local housing discrimination laws.
“Critically, Grindr has not contributed anything to the objectionable profiles; the profiles are objectionable solely because of the false information supplied by Plaintiff’s tormenter,” Caproni wrote.
The fact that Herrick joined Grindr in 2011 because he believed it to be a “safe space” and four years later met JC and had a one-year relationship with him is too “attenuated,” the judge found, to make it likely he would prevail on state consumer protection claims, either.
“The only connection between Plaintiff’s present day injury and Grindr’s alleged misrepresentations approximately five years ago is the fact that Plaintiff would not have otherwise joined Grindr in 2011 and would not have otherwise met JC,” Caproni wrote. “This is an exceedingly remote connection.”
Caproni will consider Herrick’s potential motion to send the case back to state court and Grindr’s “anticipated motion to dismiss” following a conference on the case scheduled for March 10.
[Editor’s note: Due to an editing error the reason for the removal of the case from state to federal court was inaccurately described in the original posting of this story.]