Grindr Gets Lucky in Kentucky

A Circuit Court in Oldham County, Kentucky recently waded into the murky world of Grindr and Section 230 of the Communications Decency Act.  Its conclusion once more fortifies the protections offered by Section 230.

The case concerned a plaintiff identified in the lawsuit as "C.D."  According to the complaint, in 2022, C.D. was a 15-year-old high school student.  She signed up with Grindr to "hopefully meet someone she could have sex with."  Grindr advertises itself as a geolocation-based social networking application for the LGBTQ+ community. To sign up, a user must provide their date of birth and accept Grindr's Terms & Conditions of Service.  Under these terms, only users who represent that they are above the age of majority may access the app, post content, or communicate with others.  If Grindr has reason to believe a user provided a false birthdate and is under 18 (or the age of majority in their jurisdiction), Grindr bans the user's account.  Grindr only restores access to such accounts if the user provides additional evidence of their age, including "[a] clear photo of the user holding a piece of paper with [their] email address [or device ID] handwritten on it" and "[a] clear photo of the user holding a valid, government-issued ID showing [their] date of birth."

The complaint further asserts that between November of 2022 and May of 2023, C.D. "met and had sex with multiple people over 18 years old all of whom she met through Grindr."  One of these adults was Defendant Richard Pelphrey.  Defendant Pelphrey had sex with C.D. on multiple occasions and on at least one occasion, Pelphrey used ether on C.D. and offered to obtain ketamine for her as well.

In her complaint, C.D. alleges Grindr is responsible for Pelphrey's and the other adult users' actions because Grindr should have prevented C.D. from communicating with them by implementing stricter age verification procedures.  C.D.'s theory is not that Grindr had a responsibility to remove any third-party content but rather Grindr's design should not have allowed C.D. easy accessibility to the app.

Grindr filed a motion to dismiss the complaint, arguing that Section 230 of the federal Communications Decency Act barred the claim.  Section 230 immunizes providers of interactive computer services against liability arising from content created by third parties.  It 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."  Grindr argued in its motion that C.D.'s claim was based on Grindr transmitting information between C.D. and her partners.  Grindr contended that information constituted "third party content" which could not support a claim under the terms of Section 230.

C.D. countered this position by arguing that her claim was based on a design flaw in the Grindr app – it failed to implement stricter age verification procedures.  In C.D.'s view, this was not a publishing function, but rather a design function which Section 230 does not protect. 

In considering the motion, the Court pointed to Section 230's three main purposes.  First, it maintains the robust nature of Internet communication and, accordingly, ... keeps government interference in the medium to a minimum. Second, the immunity provided by Section 230 protects against the "heckler's veto" that would chill free speech.  Without Section 230, persons who perceive themselves as the objects of unwelcome speech on the internet could threaten litigation against interactive computer service providers, who would then face a choice: remove the content or face litigation costs and potential liability. Immunity shields service providers from this choice.  Third, Section 230 encourages interactive computer service providers to self-regulate.

In reviewing these purposes, the Court concluded that Section 230 provided immunity to Grindr in this case.  As it noted, "[t]here is no doubt that what happened to C.D. was heinous. . . .   However, . . .  Courts have consistently found the protections of § 230 applicable and have dismissed the cases.  Consistent with other federal courts, this Court finds that if Grindr had not published communications between the parties, the two would never have met and the sexual assault would never have occurred.  Regardless as to how [C.D] attempts to classify and plead her claims, the Court viewed [C.D.'s] claims as directed toward Defendant Grindr in its publishing, editorial, and/or screening capacities.  Thus, [C.D.'s] claims are barred by § 230 immunity."

Often the law requires hard decisions.  This is certainly one of them.