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Ninth Circuit:
Grindr Immune From Liability for Sexual Assaults of Minor
Opinion Says Communications Decency Act Bars Negligence, Defective Design Claims by Plaintiff Alleging App Is Marketed to Children, Was Used to Connect Him to Predators
By Kimber Cooley, associate editor
The Ninth U.S. Court of Appeals held yesterday that Grindr Inc., the creator of a dating app targeting LGBTQ men, is immune from liability, under a federal law protecting online platforms from being held liable for content posted by their users, as to state law claims based on an alleged failure to protect the plaintiff—a 15-year-old autistic high school student—from being matched with adult sexual predators.
At issue is the Communications Decency Act, codified at 47 U.S.C. §230, which provides that “[n]o provider…of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with” the act’s provisions.
In an opinion, authored by Circuit Judge Sandra S. Ikuta, and joined in by Circuit Judge Bridget S. Bade and Senior Circuit Judge Jay S. Bybee, the court found that the plaintiff’s state law claims for negligence, design defect, and other related causes of action “necessarily implicate[]” Grindr’s role as a publisher because discharging any alleged duty would require the company to monitor its users’ content and prevent adult communication to children.
As such, the court concluded, the action is barred by the act.
Complaint Filed
The question arose after the plaintiff, a Canadian resident identified in court documents as “John Doe,” filed a complaint in Los Angeles Superior Court on March 10, 2023, asserting the state law causes of action and a claim based on the federal Trafficking Victims Protection Reauthorization Act (“TVPRA”), codified at 18 U.S.C. §1595(a).
Grindr, a Delaware corporation headquartered in West Hollywood, removed the case to the U.S. District Court for the Central District of California.
Doe alleges that the app, which uses geolocation data to match users based on proximity, connected him with four men over the course of four days in the spring of 2019, when he was a high school student, and that each of the adults sexually assaulted him after he agreed to meet them. Doe says that he used the app to send “intimate” photographs before meeting with some of the men in person.
In the complaint, he asserts:
“The Grindr App matched Doe with three men who have now been convicted of sex crimes against him, and a fourth who remains at large and a risk to the children of Nova Scotia….
“Grindr never attempted to verify Doe’s age.
“….Doe has suffered, and continues to suffer, life changing emotional and psychological injuries caused by Grindr’s failure to create a safe product.
“Doe has suffered the castigation and judgment from people unschooled in the intersection of Autism and childhood sexual trauma who suggest he is to blame for returning to the Grindr App in that four day stretch of compounded daily assaults.”
He acknowledges that the app requires users to be over 18 years old, and that he lied about being an adult when he signed up, but contends that the app was heavily marketed to children, pointing to a video, posted by Grindr on the social media platform TikTok, depicting young people wearing backpacks and standing in front of a high school building and another posting showing a young person in a gymnasium with the caption “every gay in PE class.”
Motion to Dismiss
After Grindr filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), District Court Judge Otis D. Wright II ordered the dismissal of the complaint with prejudice on Dec. 28, 2023, finding that the plaintiff’s claims are barred under §230. He wrote:
“The facts of this case are indisputably alarming and tragic. No one should endure what Plaintiff has. However, after careful review and consideration of the facts and applicable law, the Court ultimately determines that Plaintiff’s claims are precluded by the Communications Decency Act….”
The Ninth Circuit affirmed the dismissal.
Ikuta explained:
“Although § 230 is broad, it does not provide ‘a general immunity from liability deriving from third-party content.’….As applied to state law claims, it ‘only protects from liability (1) a provider or user of an interactive computer service (2) whom a plaintiff seeks to treat, under a state law cause of action, as a publisher or speaker (3) of information provided by another information content provider.’….There is no dispute that Grindr is an interactive computer service provider, so we consider only the remaining two prongs.”
Third-Party Publisher
The jurist noted:
“The second prong requires us to ask whether plaintiff claims that the defendant breached a duty that ‘derives from the defendant’s status or conduct as a publisher or speaker.’…If the duty does not derive from such status or conduct, but rather from another source, then § 230 does not immunize the defendant….The third prong requires us to ask whether the cause of action targets ‘content provided by another.’…A defendant loses its immunity to the extent that the cause of action seeks to treat the defendant ‘as the publisher or speaker of its own content—or content that it created or developed in whole or in part—rather than [as] the publisher or speaker of entirely third-party content.’ ”
Applying these standards, she opined:
“Each of Doe’s state law claims necessarily implicates Grindr’s role as a publisher of third-party content. The theory underpinning Doe’s claims for defective design, defective manufacturing, and negligence faults Grindr for facilitating communication among users for illegal activity, including the exchange of child sexual abuse material. Doe claims that Grindr had a duty to suppress matches and communications between adults and children, so as to prevent the harmful sharing of messages between users that could lead to illegal activity. These claims necessarily implicate Grindr’s role as a publisher of third-party content, because discharging the alleged duty would require Grindr to monitor third-party content and prevent adult communications to minors.”
She continued:
“Doe’s theory of liability is that Grindr breached its duty not to design or manufacture defective products by failing to prevent a minor from being matched with predators, by matching users based on geographic data it extracted from them, and by allowing Doe to communicate with abusive adults. But…Doe used ‘features and functions’ of Grindr that were ‘meant to facilitate the communication and content of others,’ and the features and functions were ‘content neutral’ on their own….Therefore,…§ 230 bars the defective design, defective manufacturing, and negligence claims.”
Lemmon Case
Doe compares his claims to those at issue in the 2021 Ninth Circuit decision of Lemmon v. Snap Inc., in which the plaintiffs alleged a product defect, which they said encouraged users to drive recklessly, flowing from the interplay between a purported “reward system” on the app and a feature that allowing users to post their real-life speed over social media.
In that case, the court concluded that the alleged violation of a duty to design a reasonably safe product had nothing to do with “editing, monitoring, or removing of the content that its users generate through” the app and held that the claims were not barred by §230.
Unpersuaded by the comparison, Ikuta wrote:
“The duty to avoid designing a product that encouraged dangerous driving was ‘fully independent of [defendant’s] role in monitoring or publishing third-party content,’ and it did not ‘seek to hold [the defendant] responsible as a publisher or speaker.’…By contrast, the challenged features of the App are not independent of Grindr’s role as a facilitator and publisher of third-party content.”
She added:
“Nor can Grindr be held liable for negligent misrepresentation. This theory of liability faults Grindr for stating that it would maintain a ‘safe and secure environment for its users’ on the App but failing to do so….[T]he statement that an interactive computer service provider will create a safe and secure environment is too general to be enforced.”
Federal Claim
Turning to Doe’s TVPRA claim, Ikuta pointed out that “[t]o allow TVPRA lawsuits against online enterprises to go forward, Congress enacted an exception to § 230” found at 47 U.S.C. § 230(e)(5), which “provides that nothing in §230…shall impair or limit any civil action brought under” §1595(a) if the defendant “knowingly” engages in child sex trafficking or benefits financially from the enterprise.
She remarked that “Doe must plausibly allege that Grindr ‘knowingly’ sex trafficked a person by a list of specified means” and declared:
“The [operative complaint’s] allegation that Grindr ‘knowingly introduces children to adults for in-person sexual encounters,’ is not supported by any plausible factual allegations….At most, the [operative complaint] shows only that Grindr ‘turned a blind eye’ to facilitating matches between minors and adults, which is insufficient….
“Doe’s beneficiary theory of TVPRA liability also fails, as the [operative complaint] does not plausibly allege that Grindr benefitted from the alleged sex trafficking beyond generally receiving advertising revenues.”
The case is Doe v. Grindr, 24-475.
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