When the en banc Ninth Circuit decided Fair Housing Council of San Fernando Valley v. Roommates.com, 521 F.3d (1157 (9th Cir. 2008), a case in which the court held that a Web site could be liable as an "information content provider" of unlawfully discriminatory content that users were required to submit to the site, the prevailing view among publishers' attorneys was that they could live with it.
Speaking at a conference several months after the Roommates.com decision, Barbara W. Wall, vice president and associate general counsel, Gannett Co. Inc., said that she was “heartened” by the Roommates.com decision, rather than seeing it as a “threat” to online publisher protections created by Section 230 of the Communications Decency Act. By requiring answers to its profile-building questions, the Roommates.com Web site "turned your computer into [a Fair Housing Act] violation machine,” Wall said.
Section 230 of the Communications Decency Act gives "interactive computer services" immunity from most claims arising from the publication of content submitted by third-party "information content providers." The problem identified by Roommates.com was that profile-building forms on the Web site required users to express unlawful preferences for potential roommates. This aspect of the Web site's operation made Roommates.com an "information content provider" with respect to the unlawful content supplied by its users, the Ninth Circuit ruled. Thus, the Web site was not entitled to CDA Section 230 immunity from Fair Housing Act liability arising from this content.
Wall's reading of the Roommates.com decision has so far held up, at least in the lower court cases that have considered that aspect of the Roommates.com decision. The five cases decided since Roommates.com all pretty much bear out Wall's view that publishers lose their CDA Section 230 immunity only when they require the submission of unlawful content. In fact, one court took an even narrower view, stating that in Roommates.com it was the Web site's profile-building questions themselves that were unlawful.
In Doe v. MySpace Inc., No. 08-140 (E.D. Texas May 22, 2009), the court held that MySpace was not an "information content provider" of information contained in an online profile supplied by the plaintiff, a crime victim whose sexual assault was allegedly orchestrated through use of the MySpace Web site:
[T]he Plaintiff argues that the Defendant is an information content provider because it developed the information on the profiles which caused Julie Doe’s injuries. However, Roommates.com is not applicable to the instant case. The Ninth Circuit repeatedly stated throughout its en banc opinion that the Roommates.com website required its users to provide certain information as a condition of its use and was, therefore, and information content provider. Here, however, users of MySpace.com are not required to provide any additional information to their profiles identified and later sexually assaulted. ... [A]lthough MySpace.com prompts its users to supplement their profiles with additional information via a list of categories, such conduct is insufficient to hold the Defendant out as an information content provider.
Another decision, Goddard v. Google, Inc., involved allegedly unlawful content that was submitted by a Google Adwords advertiser. The court rejected a Roommates.com-based attack on CDA Section 230 immunity, stating that Roommates.com lost its immunity "only by forcing its users to provide the allegedly discriminatory information as a condition of access."
In GW Equity LLC v. Xcentric Ventures LLC, No. 07-976 (N.D. Texas Jan. 9, 2009), the court said that Roommates.com held that a Web site would not be entitled to CDA Section 230 immunity only in cases in which "a mere question leads to liability." Merely encouraging a Web user to select a category from a broad range of proposed categories did not deprive the Web site operator of immunity for user-supplied unlawful content.
In Atlantic Recording Corp. v. Project Playlist Inc., No. 08-3922 (S.D.N.Y. March 25, 2009), the court offered an even narrower reading of the Roommates.com decision. This court believed that the questions themselves must be unlawful:
The Ninth Circuit's decision was based solely on the fact that the content on the website that was discriminatory was supplied by Roommates.com itself. It was Roommates.com that, in violation of federal and California state housing law, required potential subscribers to identify their sex, sexual orientation, and family status, and to indicate their preferred sex, sexual orientation, and family status in a roommate.
Lastly, in Barnes v. Yahoo! Inc., No. 05-36189 (9th Cir. May 7, 2009), the court described Roommates.com as holding that merely providing "neutral tools to carry out what may be unlawful or illicit" does not make a Web site an information content provider.
Looking at these cases, it's fair to say that while Roommates.com was a loss for one particular online publisher, it is causing very few problems for the rest of the Web.
Follow me on Twitter at @bnatechlaw
Comments