Does Grindr have liability for sexual crimes performed by its users against other users?
On February 1, 2021, KGET.com reported that a 32 year old Bakersfield man faces prosecution for physical (sexual) assault on a “teen” that he met on the online application Grindr. The question then follows: what kind of liability does Grindr face for sexual assault performed by one user against another.
In short, it is unlikely that Grindr has any civil liability for the posts and interactions that originate on behalf of it’s users, even when they lead to sexual assaults. In Doe II v. MySpace, Inc., four minor girls sue MySpace for culpability in sexual assaults committed by men against them.1Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 563 [96 Cal.Rptr.3d 148] They met the men through MySpace’s platform, and the court found that MySpace had statutory immunity from civil suits in cases like these. (see below)
The criminal culpability is another matter. However, an essential element to a criminal act is an “evil intent” (mens rea). Even under accomplice or co-conspirator theory, one must show that the person had an “evil intent” or an intent to further the crime. 2Pen. Code, § 182; People v. Marsh (1962) 58 Cal.2d 732, 743 [26 Cal.Rptr. 300, 376 P.2d 300]. Here, It is unlikely that prosecution will be able to show that Grindr had an intent to further crime by providing it’s matchmaking service.
Grindr likely has no liability for criminal acts, and likely enjoys immunity granted by federal statute for civil claims against it.
Doe II v. MySpace Inc. (2009)
To answer this question, we will look at a Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 563 [96 Cal.Rptr.3d 148]. In this California case, four separate cases are reviewed at the same time. In each case, a minor girl (aged 13 to 15) sued MySpace for negligence, gross negligence and strict product liability. Individually, each claimed that MySpace should bear responsibility for sexual assaults that occurred against them, in part, because of MySpace’s online platform, which enabled the men to find victims absent adequate controls.
The court takes special note of MySpace’s terms of service (end user agreement), which provide several warnings. 3Doe II v. MySpace Inc. , supra, 175 Cal.App.4th 561, 564 [96 Cal.Rptr.3d 148]. The warnings include: “Don’t post anything you wouldn’t want the world to know,” “Avoid posting anything that would make it easy for a stranger to find you,” “People aren’t always who they say they are,” “Don’t mislead people into thinking you’re older or younger.” 4Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 564 [96 Cal.Rptr.3d 148].
Argument / Claim
The plaintiffs claim that MySpace reasonably could foresee that minors would use the site, and MySpace did not take reasonable precautions to make a safe space for people to interact. 5Doe II v. MySpace Inc. , supra, 175 Cal.App.4th 561, 565 [96 Cal.Rptr.3d 148]. “MySpace is aware that its Web site poses a danger to children, facilitating an astounding number of attempted and actual sexual assaults . . .” 6Doe II v. MySpace Inc. , supra, 175 Cal.App.4th 561, 565 [96 Cal.Rptr.3d 148].
MySpace successfully had all the cases dismissed before trial. 7Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 565 [96 Cal.Rptr.3d 148]. MySpace moved for dismissal claiming that under United States Codes Title 47 section 230, it had an immunity for the conduct of its users, and the plaintiffs failed to allege sufficient facts to get around that immunity. 8Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 565 [96 Cal.Rptr.3d 148].
Under United States Codes Title 47 section 230, the Congress stated the policy reasons that it hopes to support with this law. In this code section, Congress established a general policy to promote and protect online services that encourage the exchange of ideas and promote free association between its users. 947 USCS § 230, subd. (b). “The express language of the statute indicates Congress did not intend to limit its grant of immunity to defamation claims. Instead, the legislative history demonstrates Congress intended to extend immunity to all civil claims.” 10Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 568 [96 Cal.Rptr.3d 148], emphasis added.10
“Immunity under section 230 requires proof of three elements: (1) MySpace is an interactive computer services provider, (2) MySpace is not an information content provider with respect to the disputed activity, and (3) appellants seek to hold MySpace liable for information originating with a third party user of its service.”11Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 568 [96 Cal.Rptr.3d 148].
In a review of federal case law, the court finds that “[i]t would be impossible for service providers to screen each of their millions of postings for possible problems.” 12Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 569 [96 Cal.Rptr.3d 148]. “Congress considered the weight of the speech interests implicated and chose to immunize service providers to avoid any such restrictive effect.” 13Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 569 [96 Cal.Rptr.3d 148], quoting Zeran v. Am. Online, Inc. (4th Cir. 1997) 129 F.3d 327, at 331.
In a similar but previous case against MySpace, originating out of Texas, “[t]he Fifth Circuit interpreted [section 230] to provide broad immunity extending to cases arising from the publication of user-generated content.” 14Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 570 [96 Cal.Rptr.3d 148].
Texas law and the corresponding Fifth Circuit decisions are persuasive but not binding in California.15Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 571 [96 Cal.Rptr.3d 148]. (See this article on the effects of stare decisis.) California is within the Ninth Circuit, so decisions within the Ninth Circuit have a stronger, binding effect.
“In a different context, the Ninth Circuit extended section 230 immunity to an online dating service, finding it was not liable when an unidentified party posted a false online profile of an actress, which resulted in harassing phone calls, letters, and faxes to her home.” 16Doe II v. MySpace Inc. (2009) 175 Cal.App.4th 561, 570 [96 Cal.Rptr.3d 148].
California’s Supreme Court “noted in Barrett that the immunity conferred by section 230 applies even when self-regulation is unsuccessful, or completely unattempted.”17Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 571 [96 Cal.Rptr.3d 148], emphasis in original, see also Barrett v. Rosenthal (2006) 40 Cal.4th 33, 54 [51 Cal.Rptr.3d 55, 146 P.3d 510].
Quoted from Doe II v. MySpace Inc., supra:
“In all but one of [the cases reviewed], the harm actually resulted from conduct that occurred outside of the information exchanged, whether that information was actionable or not.”19Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 574 [96 Cal.Rptr.3d 148], emphasis added. Similarly, the sexual assaults against the minor Julia Does in this case occurred outside of the MySpace platform and the information exchanged thereon.
“Given the general consensus to interpret section 230 immunity broadly, extending from Zeran to the Fifth Circuit’s opinion in Doe v. MySpace, Inc. addressing identical facts and legal issues, we also conclude that section 230 immunity shields MySpace in this case.” 20Doe II v. MySpace Inc., supra, 175 Cal.App.4th 561, 572-573 [96 Cal.Rptr.3d 148].
Application to Grindr
Just like MySpace, Grindr will not be held liable for posts generated by third party users. Here, the Bakersfield local created a profile and used it to find other users. But Grindr did not participate in creating posts, editing posts, or otherwise altering or interacting with the communication stream between the users. Just like the sexual assaults in Doe II, the sexual assault occurred offline. The crime was not committed on the Grindr platform, but was committed outside the platform and unrelated to the platforms primary purpose.
Grindr is therefore not likely liable for any civil liability to the victims of sexual crimes associated with its use.