Harassment suit against hookup site Grindr gets cold shoulder from court
Matthew Herrick’s high-profile legal case against Grindr had all the ingredients of a salacious story about the unintended victims of the internet until late March, when a federal appeals court ruled against his case proceeding. Although his lawyers are seeking a rehearing, for now it’s looking like Herrick may never get his day in court, and it’s business as usual at the gay hookup site that is used by millions of people worldwide.
In a message to Yahoo News, Herrick said he was “heartbroken” upon learning of the decision.
“I find it reprehensible that a company that knew the horror I experienced from their platform for an entire year has no responsibility to step in or take any accountability,” Herrick wrote. “This wasn’t simply harassment. This was a full-fledged attack on my life.”
Herrick, an aspiring actor living in New York City, had his life upended when an ex-boyfriend turned to Grindr to torment him between October 2016 and March 2017. The ex set up fake profiles impersonating Herrick, using his photo, allegedly directing would-be hookups to his real address. The profiles were intended to attract men who were into deviant, hard-core sex, and in the profile description were code words for drugs, unprotected sex and bondage. The fake profiles also falsely claimed Herrick was HIV-positive.
What happened from there was described in court papers as a “nightmare” for Herrick. Strangers would show up at his home and workplace, directed there, he alleges, by Grindr’s geolocation features, which allow men to meet other men in their vicinity. Herrick would try to explain to the men that the profiles were impersonations, but because the lewd enticements in the fake profiles included rape fantasies, some of the men thought Herrick was role playing, and refused to leave, “aggressively demanding sex, sometimes violently.”
Herrick’s bitter ex had apparently got what he wanted: revenge. Although the ex was arrested and charged with stalking and other felonies in October 2017 (he remains in custody awaiting trial), Herrick believed that Grindr should also be held responsible for his ordeal. He had complained to the company numerous times, filed more than a dozen police reports and even got a temporary restraining order issued against Grindr, but his complaint says the company failed to take action and the unwanted solicitations continued. Herrick, the complaint said, “experienced grave emotional distress and trauma because Grindr’s products and services marshaled an endless stream of horny and violent strangers into his life.”
For its part, legal filings by the company’s attorneys claim “Grindr rigorously worked to try to stop the alleged impersonation...and identified and deleted numerous accounts.” But its central defense was that it couldn’t be held responsible for “content” posted on its site by a third party. It was invoking a powerful statute that has long protected online platforms from being sued — Section 230 of the Communications Decency Act of 1996. Grindr, like Facebook, Reddit, Yelp or other online platforms that do not produce their own content, are generally immunized from lawsuits such as Herrick’s. Section 230 was intended to encourage freedom of expression online, but it leaves victims like Herrick without much legal recourse against powerful Internet companies. The dismissal of Herrick v. Grindr by the Second Circuit was yet another affirmation of the law’s broad protections for companies like Grindr.
“The weaponization of products has become a major issue with no legal recourse to the ones it harms,” Herrick wrote in his reply.
“I’m on a f***ing crusade against Section 230,” Carrie Goldberg, Herrick’s attorney, told Yahoo News. Goldberg is owner of a law firm specializing in defending abuse and harassment victims, and author of the forthcoming book “Nobody’s Victim: Fighting Psychos, Stalkers, Pervs, and Trolls.”
“It was never supposed to give the tech industry blanket immunity for any harm that’s caused on their platforms,” Goldberg said. “I had all this hope, especially with the Second Circuit, that the court could narrow back down the scope of 230.”
Goldberg says courts are interpreting the law too broadly and is calling for legislators to scrap the section entirely. And she isn’t the only one calling for more scrutiny of a law that has long been considered a bulwark against censorship. Section 230 is being attacked from the left and right sides of the political spectrum, by everyone from Democratic House Speaker Nancy Pelosi to Republican Sen. Ted Cruz.
But as much as Section 230 is under political attack, the Herrick v. Grindr lawsuit shows what an uphill battle victims face in challenging the liability protections in court.
Herrick’s legal team filed 14 claims against Grinder, claiming that it was legally liable for a defective product design, that it had engaged in false advertising and inflicted emotional distress on Herrick, but virtually none of them stuck. The court ruled that Section 230 barred all the claims, except for the claim of copyright infringement for use of Herrick’s photograph in the phony profiles.
As Aaron Rubin, co-chair of the Technology Transactions Group at Morrison & Foerster, pointed out in an interview with Yahoo News, courts have shown ambivalence in recent years about Section 230 protections. In one controversial case, Doe v. Internet Brands, the Ninth Circuit found that a company that posted model profiles was not protected by Section 230. A model had posted her profile, and a rapist used the information to lure her and later rape her. The judge found the company could be held liable for failing to warn the model that this could happen.
“What was interesting about Herrick v. Grindr is that the Second Circuit didn’t go down that rabbit hole. This is a pretty standard Section 230 analysis,” says Rubin. “We’ve seen over the past few years this seesaw back and forth. Herrick and Grindr is another swing in that pendulum.”
Powerful tech companies and digital rights groups are lobbying to uphold 230 protections. Following the Herrick v. Grindr decision, the Electronic Frontier Foundation issued a statement praising the court’s decision: “In a victory for online freedom of expression, the Second Circuit has affirmed the dismissal of a dangerous lawsuit that would threaten to undercut what makes the Internet an essential tool for modern life.”
After the ruling, Herrick tweeted: “We started a conversation. I feel as though we have contributed to something much bigger than just my case. I am proud of our fight. This is a road block, not an ending. I will continue to advocate for reform and justice. One day the courts will have to see the light.”
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