also contributed to by Kelsey Watkins*
Consumers are interacting with technology to accomplish an increasingly wide variety of daily tasks, whether finding a date with the swipe of a finger or learning the weather from a voice-controlled assistant. These technological advances present potential legal risks for their creators. Indeed, in many cases such advances are outpacing the development of the regulatory frameworks that apply to them. Two recent examples illustrate the different ways that companies are defending themselves from consumer dissatisfaction arising from tech-related interactions.
Certain interactive computer service companies – think dating apps – are defending against lawsuits by relying on the Communications Decency Act (“CDA”). Section 230(c) of the CDA shields a defendant from liability if (1) the defendant is a provider of an interactive computer service, (2) the claim is based on information provided by another information content provider and (3) the claim would treat the defendant as the publisher or the speaker of that information. Section 230(c); see also Jane Doe No. 1 v. Backpage.com, LLC, 817 F.3d 12, 19 (1st Cir. 2016) (holding that Section 230(c) should be interpreted broadly to be consistent with Congress’s desire to allow the continued development of the internet without the chilling effect of potential liability). Indeed, recent cases have confirmed that web-based dating applications fall squarely within the protections of the CDA. See Herrick v. Grindr, LLC, 2018 WL566457 (SDNY Jan. 25, 2018).
Dating apps are a convenient way for consumers to get to know others who live in their area. But, perhaps unsurprisingly, such applications that match strangers with one another based on algorithms rather than human interaction sometimes lead to unfortunate experiences. Such was the case for the plaintiff in Herrick. There, Plaintiff Matthew Herrick met his now ex-boyfriend on the web-based dating application, “Grindr.” After the demise of their relationship, Herrick’s ex-boyfriend impersonated Herrick on the app. He created a number of profiles using Herrick’s image and indicating that the falsified Herrick was interested in “fetishistic sex” and even violent fantasies. Because Herrick’s real home and work addresses were also provided on the impersonated profile, the lawsuit alleged that some potential suitors went as far as to physically assault and threaten both Herrick and his friends and co-workers. Id. at 1.
Herrick brought several claims against Grindr including product liability, negligent design and failure to warn claims. Id. at 4. The district court held that Section 230(c) of the CDA barred all of Herrick’s claims that were properly pleaded – finding it did not need to address whether the CDA would also bar certain misrepresentation claims that were inadequately pleaded. Id. at 9. Plaintiff has appealed.
Other companies are attempting to proactively resolve consumer complaints related to their interactions with technologies through simple and quick software fixes. This may in part be due to an understanding that the expense of a reputational hit is not an insignificant one. Even when a defendant has a complete defense and no liability attaches (e.g. protection under the CDA), bad consumer experiences are bad for business.
Unlike the exploding slow cooker of yester-year, today major physical recalls are often unnecessary. For example, recently the manufacturer of a smart speaker in-home voice assistant faced consumer complaints that the speaker was “spying” on them. Although the company received only a few reports of the alleged “spying” issue, it opted to update the software and permanently remove the feature in the speaker that had allowed it to intercept and automatically record in-home conversations. It is likely that the company’s “make it right” attitude helped to prevent the flight of consumers to other competitor in-home smart speaker products and the onslaught of consumer product lawsuits.
Although courts’ current broad interpretations of Section 230(c) of the CDA is favorable to internet service application companies, perhaps such companies should take note of the business risks associated with litigating even when it is likely they have a strong defense. Either way, both types of situations continue to highlight the complexities presented by the integration of technology into nearly every aspect of daily life. We will continue to monitor this important area and developments concerning the intersection between technology and the law.
*Editors’ note: Kelsey Watkins is a summer associate at Weil.