Sometimes bad facts don't make bad law. Two recent decisions confirm that a federal immunity statute protects websites from claims that they allowed their users to post content that ultimately caused injury or even death. These decisions, interpreting Section 230 of the Communications Decency Act, reinforce that a plaintiff cannot circumvent the immunity by basing his or her claims on a website's alleged design flaws or alleged failure to take adequate safety precautions if the claims, in fact, seek to hold the site liable for failing to prevent or remove third-party content.
In Herrick v. Grindr, LLC, the 2nd Circuit Court of Appeals rejected claims that a dating app was responsible for harm the plaintiff suffered after his ex-boyfriend created profiles that impersonated him. 765 Fed. Appx. 586 (2d Cir. Mar. 27, 2019) (unpublished summary order), reh'g denied (2d Cir. May 9, 2019). In Daniel v. Armslist, LLC, the Wisconsin Supreme Court reversed a decision finding that a website permitting gun advertisements could be responsible for death and injuries caused by someone who obtained a gun from someone posting such an ad. 926 N.W.2d 710 (Wis. Sup. Ct., Apr. 30, 2019).
Both decisions interpret Section 230, which provides, in part, that "[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider." 47 U.S.C. § 230(c)(1). Courts have broadly interpreted the immunity to provide protection for websites from any state-law claims based on content provided by third parties. But the immunity has been embattled lately, with online sex trafficking, election-rigging, "fake news," and hate speech making headlines, and courts and Congress acting to circumscribe the immunity. See, e.g., Pub. L. No. 115-164, 132 Stat. 1253 (2018) (Allow States and Victims to Fight Online Sex Trafficking Act of 2017) (adopting statute that would permit liability for ads posted to websites that result in sex trafficking, reacting to decisions finding the website Backpage.com immune under Section 230); HomeAway.com, Inc. v. City of Santa Monica, 918 F.3d 676 (9th Cir. 2019) (Section 230 does not preempt ordinance prohibiting short-term rental websites from permitting bookings of allegedly unregistered properties); Doe v. Internet Brands, Inc., 824 F.3d 846 (9th Cir. 2016) (website responsible for failure to warn user of third parties who used site to lure and assault user).
Herrick and Daniel offer some reassurance that the core of Section 230 immunity—permitting content to be posted by others—remains protected.
Herrick v. Grindr—2nd Circuit U.S. Court of Appeals
Grindr is a "hookup" app that matches users based on their interests and location. Herrick met a man who became his boyfriend through Grindr in 2015. Herrick v. Grindr, LLC, 306 F. Supp. 3d 579, 584-85 (S.D.N.Y. 2018). After the couple broke up, however, Herrick's ex-boyfriend began creating accounts impersonating Herrick. Id. Through these profiles, the ex-boyfriend suggested Herrick was interested in "hardcore and unprotected group sex" and used the app's direct messaging feature to tell men to expect Herrick would resist as "part of a rape-fantasy or role play." Id. Herrick alleged that he and others "reported the impersonating accounts to Grindr approximately 100 times, but Grindr has not responded, other than to send an automated, form response." Id.
Herrick sued Grindr in New York state court and obtained an ex parte temporary restraining order requiring Grindr to disable the impersonating accounts. Grindr removed the case to the federal district court for the Southern District of New York, where Herrick amended to add claims for false advertising, failure to warn, negligence, product liability, and negligent design. Id. The district court granted Grindr's subsequent motion to dismiss, dismissing most of Herrick's claims on Section 230 grounds. See Grindr, 306 F. Supp. 3d 579.
On appeal, the 2nd Circuit followed the "majority of federal circuits" in "interpret[ing] [Section 230] to establish broad federal immunity to any cause of action that would make service providers liable for information originating with a third-party user of the service." (quoting Almeida v. Amazon.com, Inc., 456 F.3d 1316, 1321 (11th Cir. 2006)).
Herrick raised a number of creative—but unsuccessful—theories to evade Section 230's application. For example, Herrick claimed that Grindr created its own content through its geolocation function, which shows users' proximity to each other. But the Court viewed the location data as originating with the user, not Grindr. See id. Herrick also argued that his claims were based on the app's alleged design and operation rather than its role as a publisher of third-party content. The Court recognized, however, that such "design defect" claims seek to hold Grindr "liable for its failure to combat or remove offensive third-party content" and are therefore barred by Section 230. Herrick relied on Doe v. Internet Brands, 824 F.3d 846, where the 9th Circuit found Section 230 did not protect a website against claims that the site failed to warn a user she was at risk of being victimized by third parties known to find victims through the site. The 2nd Circuit rejected the comparison on the basis that the defendant in Internet Brands did not act as an intermediary for harmful content, while "Herrick's failure to warn claim is inextricably linked to Grindr's failure to . . . remove the offensive content provided by his ex-boyfriend."
Daniel v. Armslist—Wisconsin Supreme Court
In Daniel v. Armslist, the plaintiff sued Armslist, which is akin to a Craigslist website for guns, permitting users to post and view ads for guns. 926 N.W.2d 710. The plaintiff sued Armslist after her mother, Zina Daniel Haughton, was shot by her estranged husband who was bound by a protective order forbidding him from possessing a firearm. After the husband allegedly posted an ad seeking a high-capacity magazine handgun "asap," he located an ad that suited his needs, met the seller, and bought a gun. The next day, he allegedly fatally shot Haughton at her work and two others before killing himself.
Haughton's daughter alleged that the website's design features made it easier for dangerous people to obtain firearms illegally. In particular, she claimed that Armslist encouraged anonymity by not requiring buyers to create accounts, facilitated illegal activity by not providing users the option to flag criminal activity, and intentionally designed its website to evade background checks and other safety measures.
The trial court dismissed the complaint on Section 230 grounds, but the Wisconsin Court of Appeals reversed, holding that Armslist's alleged design feature choices could be characterized as creation of "content," taking the website outside the scope of Section 230 immunity. The court recognized the large body of federal case law to the contrary but concluded those cases read language into Section 230 that isn't there.
The Wisconsin Supreme Court reversed. The court recognized Section 230's importance in protecting free speech online and followed the large body of federal case law broadly applying Section 230 immunity. The court affirmed that Section 230 "contains no good faith requirement," holding that Armslist's alleged knowledge of or intent to facilitate illegal content was irrelevant. The court also rejected the premise that Armslist's design choices amount to creation of content or materially contribute to illegality of a third-party's posts.
Both Armslist and Grindr presented tough facts and came amid an undercurrent of hostility toward Section 230 immunity. Fortunately, both courts affirmed the vitality of the immunity and embraced the prevailing view of an overwhelming majority of courts, that so long as a website is merely permitting content to be posted, plaintiffs may not plead around Section 230 by framing their claims as targeting a site's alleged defects, failure to take safety precautions, or the like.
DWT regularly defends internet service providers in cases involving Section 230 immunity and submitted an amicus brief in the Grindr case on behalf of the Computer & Communications Industry Association and certain individual service providers.
James Rosenfeld is a partner in Davis Wright Tremaine's New York office. Ambika Kumar Doran is a partner and Robert E. Miller an associate in the firm's Seattle office.