Consumer Watchdog Calls Upon Circuit Court to Re-Interpret Internet Law Abused by Tech Companies

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LOS ANGELES – An Internet law often cited by tech companies as a defense from any liability for material posted on their platforms must not be used as a shield by Grindr in a suit brought by a man who was victimized by posts on the site, Consumer Watchdog said today.

Consumer Watchdog said that if the U.S. Court of Appeals for the Second Circuit mis-applies the law, Section 230 of the Communications Decency Act, as courts have done in the past, then Grindr won’t be held accountable for malicious posts that attacked Matthew Herrick, a man who was impersonated on the popular gay dating app.

Consumer Watchdog filed an amicus brief with the Second Circuit Court, with the aim of stopping the Circuit from misinterpreting Section 230 so that Grindr can be held accountable for its actions.

In the brief, the nonpartisan, nonprofit group argued that other court circuits have misconstrued Section 230 immunity too broadly, meaning that all kinds of Internet service providers were able to avoid legal liability, never being held responsible for material on their platforms.

The group argued that the Circuit should consider Congress’ intent in enacting Section 230 when interpreting the law on this matter.

“Section 230, as it is widely applied by courts today, is a creature of judicial invention, untenably divorced from its actual intended function,” said Consumer Watchdog in the brief.

Read the Amicus Brief in full here. The brief was prepared and filed by Rodney A. Smolla and Neville L. Johnson of Johnson & Johnson, LLP  on behalf of the nonprofit, nonpartisan public interest group.

For five months, Matthew Herrick’s ex-boyfriend created multiple fake Grindr profiles through which he would communicate with Grindr users impersonating Herrick. This resulted in as many as 16 individuals per day arriving at Herrick’s home and work aggressively demanding sex, sometimes violently.

Even though Plaintiff submitted numerous requests to Grindr to disable the impersonated accounts, Grindr failed to respond to those requests. Plaintiff Matthew Herrick is suing Grindr for failing to protect him from identity theft.

Consumer Watchdog made the following the key arguments in the amicus brief.

First, the group argued that the court should construe Section 230 in light of Congress’ intent in enacting the legislation.

The Circuit has already set precedent by rejecting the claim of immunity in previous cases where technology companies shielded themselves with Section 230 to absolve themselves of responsibility for failing to protect its users. Consumer Watchdog urged the Circuit to continue down this path in its interpretation of the Herrick v. Grindr matter.

“In short, the door here is open. Amicus Consumer Watchdog urges the Court to walk through it,” Consumer Watchdog said in the brief.

“The Supreme Court of the United States has never yet interpreted § 230.  Until the Supreme Court does finally and authoritatively rule, it remains within the right and duty of state and federal courts to continue the ongoing debate over what Congress truly intended when it passed the statute.  Until it has been decided right, it has not been decided,” the group wrote in the brief.

In the brief, the group explained that the law was created to ensure that tech companies were held accountable for the offensive, abusive, and dangerous content on their websites.

Second, the group argued that the language of Section 230 proves that Grindr should not be provided immunity.

Consumer Watchdog argued that Section 230 only provides a defense from liability for internet service providers “who take affirmative steps to screen and block access provided by third parties because of its ‘obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable’ content.” But Grindr never took any affirmative steps to block access to third parties seeking to harass its users, even though Plaintiff Herrick reached out to them numerous times.

Third, Consumer Watchdog rejects a precedent established by the early 1997 legal decision in Zeran v. American Online, Inc.

In Zeran, Section 230 was interpreted in such a way as to immunize internet service providers from being held accountable for the offensive and damaging content posted by third parties on their platforms.

Consumer Watchdog called upon the Circuit to “unequivocally reject Zeran.” The group explained:

“Zeran and its progeny have created a monster.  For the Second Circuit to reject the § 230 defense on the egregious facts of this case will begin to tame that monster.  If this Circuit’s rejection of the unfounded and virtually impregnable immunity that Zeran has spawned creates a split with sister Circuits, so be it.  The actual intent of Congress is what must ultimately control.  Nothing in the law of this Circuit prevents this Court from interpreting § 230 in a manner faithful to that intent.  It is the right thing to do.”


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John M. Simpson
John M. Simpson
John M. Simpson is an American consumer rights advocate and former journalist. Since 2005, he has worked for Consumer Watchdog, a nonpartisan nonprofit public interest group, as the lead researcher on Inside Google, the group's effort to educate the public about Google's dominance over the internet and the need for greater online privacy.

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