Online harassment is a serious problem, and one that defies easy solutions. As the digital world grapples with potential strategies to make online life safer, we have to also fight back against misguided approaches that would undercut what makes the Internet an essential tool for modern life. That’s why EFF filed an amicus brief in Herrick v. Grindr, asking an appeals court to affirm a lower court’s dismissal of the case.
The plaintiff, Matthew Herrick, alleges that he has been mercilessly harassed online by an ex-boyfriend, who appears to have created a series of fake profiles of Herrick on the gay-dating app Grindr. Herrick says that more than 1000 men have arrived at his home and his work, thinking that they were invited for sex. In his lawsuit, Herrick is asking that Grindr be held responsible for the fake profiles and the damage his ex-boyfriend has done. But this strategy risks both free speech on the Internet, as well as the future of online innovation.
A provision of the Communication Decency Act called Section 230—short for 47 U.S.C. § 230—protects intermediaries like ISPs, social media sites, and dating sites like Grindr from liability for what their users say or do. But this is not for the platforms’ sake: it’s for the users. When Congress passed Section 230, it recognized that if our legal system failed to robustly protect intermediaries, it would fail to protect free speech online. Intermediary platforms are the essential architecture of today’s Internet. They are often the primary way in which the majority of people engage with one another online. Platforms from giants like Facebook and Twitter to small community forums and local news sites allow users to connect with family and friends and people all over the world—all without learning to code or expending significant financial resources. Protecting intermediaries protects users.
Section 230 encourages intermediaries to host a vast array of content, without having to worry about the devastating litigation costs they would incur if they could be sued for what their users says online. Without Section 230, intermediaries would likely limit who could use their service and censor more speech than ever before. Smaller platforms that could not afford to take these steps would cease to exist, meaning users would have fewer tools to communicate online.
Section 230 does not mean that victims of online harassment have nowhere to turn. Most jurisdictions have laws against abusive speech. Law enforcement needs to get smarter about online harassment so it can protect people in danger, while courts should become comfortable with legal remedies against online perpetrators. We hope that the appeals court recognizes that holding platforms responsible is not the answer, and dismisses this case.
