MANHATTAN (CN) – Blaming an outdated law for shielding Grindr, a lawyer for a New Yorker whose ex impersonated him on the gay dating app pushed the Second Circuit to revive their suit Monday.
“This is a 21st century product-liability case,” attorney Tor Ekeland told the three-judge appellate panel.
Ekeland’s client Matthew Herrick brought the suit here after an abusive ex-boyfriend sent about 1,100 men sent to his door over the course of a year with fake Grindr profiles that featured his picture and such raunchy details as “Raw Pig Bottom,” “Muscle daddy” and “Gang Bang Now!”
When he first sued the company in January 2017, Herrick reported around-the-clock harassment from 400 men arriving at his workplace and apartment “aggressively demanding sex, sometimes violently.”
The number of suitors ballooned and the stalking continued as the litigation migrated from state to federal court in Manhattan.
Once under federal jurisdiction, however, Grindr successfully argued that it was immune from liability under the Communications Decency Act of 1996.
“Allegedly hundreds of interested Grindr users have responded to the false profiles and many of them have physically sought out Herrick,” U.S. District Judge Valerie Caproni wrote last year. “This lawsuit is, however, against Grindr, not Herrick’s former boyfriend.”
Labeled by the Electronic Frontier Foundation as the most important law for speech on the internet, the act shields a “provider or user” of an “interactive computer service” from liability from content published by third-party users.
But Ekeland, whose firm specializes in cases involving computers, noted that Monday lawmakers could never have imagined an app like Grindr.
“When the CDA was written, smartphones didn’t exist,” he noted. “Google didn’t exist.”
Referring to Grindr as a “targeting system,” Ekeland added: “Grindr is an app, not a website, and that’s a crucial distinction.”
The Second Circuit struggled with the distinction during lively arguments.
Like Caproni, all of appellate judges appeared empathetic to Herrick's ordeal.
“The whole thing is horrible,” U.S. Circuit Judge Dennis Jacobs said. “But the question is, what’s the responsibility of Grindr?”
U.S. Circuit Judge Reena Raggi called what happened to Herrick “disturbing,” but she appeared skeptical that Grindr had any fault in it.
“Isn’t your client’s appearance on Grindr irrelevant to the harassment he faced?” she asked. “I would think it’s exclusively the malicious conduct of the other person.”
Ekeland argued that what made Grindr liable had been its continued publication of Herrick’s geolocation information once notified of the problem.
Grindr’s attorney Daniel Waxman argued that the law governing Grindr was no different than it would be for any other media platform.
“There’s no difference between that and Facebook and Twitter and Instagram,” said Waxman, who is a partner at Brian Cave.
All three of those social-media platforms also give users the option to post their location data.
“There’s no way that the geolocation feature had anything to do with this case,” Waxman added.
Herrick said that he was not a Grindr user at the time of his harassment and may have deleted the app. It is unclear whether the men who stalked Herrick had any assistance from the app’s feature alerting users how many feet away they are from their partners.
U.S. Circuit Judge Raymond Lohier asked whether Grindr would be liable if its geolocation services had a technical vulnerability.
Responding that Grindr would still be immune, Waxman said: “The geolocation is a neutral system open to good users and bad users.”
Asked by Judge Jacobs whether that feature could be disabled, Waxman replied: “It can be turned off, yes.”
During his rebuttal arguments, Ekeland argued that the lawsuit should not have been dismissed without gathering more information on what role the app may have played in his client’s harassment.
“I think that the court can see how difficult the questions are in this case, how complex they are,” Ekeland said.
The three-judge panel reserved decision on the appeal.
Before the proceedings ended, Ekeland revealed that Herrick’s abusive ex-boyfriend is currently detained and awaiting trial.
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