Important Ninth Circuit Decision on Websites’ Legal Immunity under the CDA
Tuesday, May 15th by Robert LoblawFair Housing Council of San Fernando Valley v. Roommates.com, LLC, 04-56916 (9th Cir., May 15, 2007)
In enacting the Communications Decency Act, Congress gave online content providers a new best friend: Section 230, which shields websites from liability for unlawful content created and posted by others. But the courts are still determining the scope of § 230’s protection. This Ninth Circuit decision suggests that § 230 may be a lot narrower than some websites would like.
At issue for this appeal is whether Roomates.com, a roommate matching service, may be liable for violating the Fair Housing Act. Users of Roommates.com fill out a form that elicits various roommate preferences, including whether they prefer to lives with males, females, families, or roommates of particular sexual orientations. The problem is that many of these preferences are illegal. Indeed, a newspaper would likely be liable for running an ad from a customer looking for a female roommate with no kids. But Roommates.com believed that § 230 shielded it from liability for posting the same ad, and the district court agreed, granting the defendant summary judgment.
On appeal, the Ninth Circuit reverses via a fractured decision. All three panelists agree that further fact finding is necessary to determine whether Roommates.com is entitled to the protection of § 230. But Judges Kozinski and Reinhardt seem pretty sure that § 230 does not extend to websites that have a significant hand in creating illegal content. Here, by requiring users to fill out a form that encourages them to express illegal preferences, Roommates.com is likely liable as a content provider.
In his lead opinion, Judge Kozinski goes on to suggest that websites that exist to publish sensitive and defamatory information may not be entitled to any protection at all. He gives the hypothetical example of a website called “harrassthem.com,” which asks users to fill out a form revealing private details about targets and encouraging them to provide salacious “dirt” about them. This sounds like a warning to sites like “dontdatehim.com” and gossip bloggers like Kozinski’s former BFF David Lat, who was recently the target of an angry letter from the Koz for dishing on the private life of a judge. At any rate, this warning is pure dicta, as Judge Ikuta explains in a concurrence that criticizes her colleagues for reading § 230 too narrowly.
The panel also divides over whether Roommates.com should be liable for illegal preferences that users post in the “additional comments” section of its form. Here, Judges Kozinski and Ikuta agree that § 230 protects Roommates.com from liability for posting these statements, since it did not specifically encourage users to express illegal preferences. Judge Reinhardt dissents from this portion of the decision, arguing that the “additional comments” section cannot be separated from the rest of the form, which clearly encourages users to say illegal things.
May 15th, 2007 at 11:31 am
It’s been a while since I took Property, but my recollection is that it would be OK for Roommates.com to collect this information and use it to prescreen suggested matches, as long as it didn’t advertise the illegal preferences, right? So it can’t display an ad that says, “I want to live with a straight woman with no kids,” but it can look through its private data on all the listings and only present the ones belonging to straight women with no kids to a user doing a search?
May 15th, 2007 at 10:30 pm
[…] protection has only grown in importance. However, a decision handed down today by the Ninth Circuit may narrow section 230 protection (via Above The Law) to some extent. At issue is whether the site Roommates.com is on the hook for […]
May 15th, 2007 at 11:52 pm
[…] The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.” […]
May 16th, 2007 at 1:58 am
Elizabeth,
Actually, the fact that Roommates targeted listings to persons looking for specified criteria contributed to the court’s conclusion that Roommates was responsible for the content and thus not immune:
May 16th, 2007 at 2:04 am
Elizabeth,
Due to my unskilled attempt to use the HTML tag for a block quote, the block quote was omitted from my comment entirely and my closing comments appeared in a block quote! Here’s the block quote from the decision missing from my earlier post (which I’m not going to actually try to block quote this time):
“While Roommate provides a useful service, its search mechanism and email notifications mean that it is neither a
passive pass-through of information provided by others nor
merely a facilitator of expression by individuals. By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is ‘responsible’ at least ‘in part’ for creating or developing.”
May 16th, 2007 at 6:10 am
I thought the FHA was meant to protect potential tennants from unfair descrimination by landlords. Roommates should always be able to pick another roommate based on anything they want. Sharing a living space with someone should not been seen as a right.
Am I misunderstanding the lawsuit? Are landlords listing no-gays-allowed apartments on the website? I thought the website was just to match users with a rondom to share a lease with.
July 17th, 2007 at 10:45 am
[…] protection has only grown in importance. However, a decision handed down today by the Ninth Circuit may narrow section 230 protection (via Above The Law) to some extent. At issue is whether the site Roommates.com is on the hook for […]
July 28th, 2007 at 8:24 pm
[…] The Decision of the Day blog provides analysis supporting its opinion that the “decision suggests that § 230 may be a lot narrower than some websites would like.” […]