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. EFF filed an amicus brief in the case, Herrick v. Grindr, last fall, urging the court to do the right thing. We’re happy to report that the court heeded our warning.
The plaintiff in the case, Matthew Herrick, alleged that he has been mercilessly harassed online by an ex-boyfriend, who appears to have created a series of fake profiles of Herrick on the gay-dating app Grindr. Herrick said that more than 1000 men have arrived at his home and his work, thinking that they were invited for sex. In his lawsuit, Herrick asked that Grindr be held responsible for the fake profiles and the damage caused by his ex-boyfriend. While what happened to Herrick is despicable, it’s the perpetrator that should be held responsible, not the online space where the harassment happened. If it were successful, Herrick v. Grindr would have threatened free speech and innovation online.
A provision of the Communication Decency Act called Section 230—short for 47 U.S.C. § 230—protects intermediaries like ISPs, social media sites, and dating sites like Grindr from liability for what their users say or do. This is not for the platforms’ sake: it’s for the users. When Congress passed Section 230, it recognized that if our legal system failed to robustly protect intermediaries, it would fail to protect free speech online.
Intermediary platforms are the essential architecture of today’s Internet. They are the primary way that the majority of people engage with one another online. Platforms from giants like Facebook and Twitter to small community forums and local news sites allow users to connect with family and friends all over the world—all without learning to code or expending significant financial resources. Weakening the legal protections for online intermediaries in Section 230 would cause platforms to ramp up their moderation practices, silencing innocent people in the process. Protecting intermediaries protects users.
Luckily, the Second Circuit recognized the importance of protecting intermediaries. The court shut down the plaintiff’s attempt to get around Section 230’s protections by claiming that his claims were based on how Grindr designed and operated the app, not on content posted by the ex-boyfriend. The court recognized that the plaintiff’s claims about Grindr being “dangerous and defective” stemmed from information created by the ex-boyfriend, and that this case was precisely the sort of case that Congress sought to protect against when enacting Section 230 back in 1996. According to the court, “Plaintiff’s attempt to artfully plead his case in order to separate the Defendant from the protections of the CDA is a losing proposition.”
We’re happy to see the court reject this blatant attempt to work around Section 230, particularly as more and more civil litigants attempt to plead around the statute’s protections. It’s more important than ever that courts uphold the protections afforded by Section 230. Section 230 encourages intermediaries to host a vast array of content, without having to worry about the devastating litigation costs they would incur if they could be sued for what their users say online. Without Section 230, intermediaries would likely limit who could use their service and censor more speech than ever before. Smaller platforms that lack the resources to take those steps and the wherewithal to defend themselves in court would be unable to compete with big incumbents, meaning users would have fewer tools to communicate online.
Section 230 does not mean that victims of online harassment have nowhere to turn. Most jurisdictions have laws against abusive speech. Law enforcement needs to get smarter about online harassment so it can protect people in danger, while courts should become comfortable with legal remedies against online perpetrators. We’re glad that the Second Circuit recognized that holding platforms responsible is not the answer.