Thomas R. Burke and Ambika K. Doran at Davis Wright Tremaine published a nice article today summarizing the state of CDA Section 230's publisher immunity for user-generated content following the Ninth Circuit's decision in Fair Housing Council of San Fernando Valley v. Roommates.com, No. 04-56916 (9th Cir. May 15, 2007).
Roommates.com held that an online roommate matching service was not eligible for CDA immunity from fair housing claims arising from user messages posted in response to structured, profile-building questions about roommate preferences. The ruling surprised traditional publishers, who are scrambling frantically to climb aboard the Web 2.0 bandwagon by incorporating user-generated content into their Web sites, because it created liability under circumstances where most attorneys had been counseling there was none. Roommates.com, in a very tiny nutshell, held that the Web publisher/defendant's involvement in shaping its users' comments through profile-building questions made it "responsible ... in part" for the users' comments; accordingly, under 47 U.S.C.§230(f)(3), the Web publisher was an "information content provider" fully liable for the legal consequences of the user comments.
Burke and Doran note that, even after Roommates.com, the basic principle that Web publishers enjoy CDA immunity for most causes of action arising from user-generated content remains intact. The acts of creating online bulletin boards, or seeking comment on a particular news story, are still protected by CDA immunity. The CDA's "good Samaritan" protection for instances in which Web publishers take steps to remove or filter offensive or libelous material also continues to be available to publishers. Finally, Web publishers still retain the ability to promote the presence of user-generated content on their sites without fear of losing their CDA immunity.
However, the article advises, "website operators should remain cautious about allowing users to post their own comments if the space provided for doing so overtly urges readers to post information that a court might deem illegal."
The Ninth Circuit is currently considering a petition seeking en banc rehearing of the Roommates.com decision.
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