Intellectual Property

'Auld Lang Syne' For Website Immunity? A Novel Approach To An Old Problem

2019 is off to an interesting start regarding this novel application of products liability law against the backdrop of CDA immunity,

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(Photo via MichaelSpasari / Wikimedia Commons)

Happy New Year!  Well, the new year seems to be off to an interesting start, as least as far as website liability for third-party content is concerned.  The internet has created more than just an “information superhighway” — it has launched a vast array of websites that have literally delivered products and services to our doorstep (to which my Amazon purchases this past Christmas can attest).  In fact, most of us regularly access these sites through apps on our smartphones and tablets, making the entire online experience available on demand at our fingertips in our everyday lives.  From social media to dating, such apps have changed the way we interact with each other.  Unfortunately, such ubiquitous accessibility does not stop bad actors from doing bad things through such websites and apps.  It is at this intersection of services and content that the current question pivots, and how it will be answered is anyone’s guess.

In 2017, the dating app Grindr was sued by one of its users in the Southern District of New York for harassment stemming from fake profiles intentionally directed to this plaintiff from an ex-boyfriend.  This wasn’t a trivial matter — according to the complaint, the app “directed approximately 1100 strangers to [p]laintiff’s home and workplace” in a mere five months (between October 2016 through March 2017).  In fact:

From October 2016 to the present, Plaintiff received between 1 and 16 individuals per day showing up to his home and restaurant workplace expecting sex. The typical number of visitors per day was 4 to 8 at home and at its peak, an additional 4 to 8 visitors per Plaintiff’s 6-hour work shift.

Such targeting was ostensibly made possible by a software vulnerability in the Grindr software that allowed precise geographical pinpointing of individual users without hacking the software.   Problematic?  That would be an understatement.  Worse, the plaintiff initially obtained a restraining order requiring Grindr to disable to offending profiles, yet the harassment continued for months.

Sadly, online harassment is nothing new, but this case presents a new tactic to address it.   Taking a page from product liability law, this plaintiff is asserting that Grindr is liable for defects in the design and manufacture of the software, alleging that the software app “contains defective conditions” and is “fundamentally unsafe” with respect to its design, and “contained a manufacturing flaw by failing to incorporate widely used, proven and common software to flag and detect abusive accounts that resulted in Grindr selecting and directing an incessant stream men demanding sex from [the p]laintiff.” Similar to litigation involving faulty products, the plaintiff asserts that these defects in the software were due to the negligence of the company, causing him injury.

Why is this approach novel?  Because it applies products liability concepts to software design, thereby making the company that developed the software app liable for damages incurred as a result of such defect(s).  It also confronts a protection afforded to websites under Section 230 of the Communications Decent Act of 1996 (“CDA”).  Under the CDA, websites are immune from liability for the content posted by third parties.  Specifically, Section 230 states 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.” See 47 U.S.C. § 230. The rationale makes sense — internet service providers cannot be held liable for the volumes of content that third parties post (and that such service providers host and republish) on such websites.  This rationale underpins content posted on YouTube, reviews of products on e-commerce sites like Amazon, postings on eBay, and even profiles on dating apps like the one in the present case. Such immunity, however, is not inviolate — the immunity shield has been held to be lifted in certain cases.  For example, the Ninth Circuit has held that such immunity does not apply where a user relies upon the representations of a service provider to remove offensive content and does not do so.  Although the district court in this case dismissed the complaint (finding, among other things, that the company had immunity under Section 230), the matter is currently on appeal.

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Some argue that he application of products liability law to websites and apps is long overdue, but is not without risks.  Service providers simply cannot effectively police all content on their websites, and if they are forced to do so, the services we have grown accustomed to may drastically change (and not for the better) to accept for the increased liability.  Moreover, the prospect of potential liability for third-party content may invoke aspects of censorship that infringe upon free speech rights of the end user or otherwise draw the entire premise of the service into question — such as where Yelp would be forced to “filter” comments that it deems so objectionable as to make them liable for the posting.   That said, Grindr should be careful in relying upon CDA immunity — to the extent it promised but did not undertake to remove profiles or otherwise take appropriate action, such immunity may not exist to the extent the plaintiff relied upon such representations to his detriment.

The New Year is indeed off to an interesting start regarding this novel application of products liability law against the backdrop of CDA immunity, but how it will end is anyone’s guess.  Whether we may be singing “auld lang syne” to such immunity remains to be seen, and oddly enough, only time will tell.

Tom Kulik is an Intellectual Property & Information Technology Partner at the Dallas-based law firm of Scheef & Stone, LLP. In private practice for over 20 years, Tom is a sought-after technology lawyer who uses his industry experience as a former computer systems engineer to creatively counsel and help his clients navigate the complexities of law and technology in their business. News outlets reach out to Tom for his insight, and he has been quoted by national media organizations. Get in touch with Tom on Twitter (@LegalIntangibls) or Facebook (www.facebook.com/technologylawyer), or contact him directly at tom.kulik@solidcounsel.com.

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