Privacy Lawyer & Attorney : Proskauer Rose Law Firm : CAN-SPAM, FCRA, FACTA

The so-called “Good Samaritan” provision of the CDA sets out, at 47 U.S.C. Sec. 230(c)(1), that     “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  This immunity provision has been construed broadly in cases involving the publication of user-created content.  Nevertheless, in Fair Housing Council v. Roomates.com LLC, 489 F.3d 921 (9th Cir. 2007), aff’d en banc 2008 (9th Cir., April 3, 2008), the Ninth  Circuit Court of Appeals found Roommates.com was not immunized under Section 230(c) because it required every user to answer questions regarding the user’s age, sex and sexual orientation. The Ninth Circuit held that these questions allowed users to discriminate against other users in violation of the Fair Housing Act. For more information, see our blog entry here.  

In Doe v. MySpace, the Fifth Circuit found that the CDA immunized MySpace from the plaintiff’s negligence claim because it was merely the web-based publisher of third-party information, not the author of the content.  Although the plaintiff claimed that she was not seeking to hold MySpace liable as a publisher of third-party content, the court held that the plaintiff’s allegations “speak to MySpace’s role as a publisher of online third-party-generated content,” and thus the CDA applied.  he plaintiff also argued that MySpace encouraged or allowed members to post information after the profiles had been created, and therefore that MySpace would not be immunized by the CDA because it partially created the content. The court declined to review the issue as plaintiff failed to raise it in the lower court. 

Unlike Roomates.com, MySpace does not require its users to post personal information that could potentially lead to discrimination. Moreover, MySpace discourages its users from sharing of personal information on its website whereas Roommates.com made sharing personal information a requirement of using the service. 

Section 230(c) of the CDA will be addressed further in the ongoing Subway v. Quiznos case (Doctor’s Associates Inc., v. QIP Holders LLC) involving sandwich giant Subway suing rival Quiznos. The case revolves around user-generated videos created at Quiznos behest that compare Subway’s sandwiches unfavorably to Quiznos’. Quiznos claims that the videos were not created by the company and that the online posting of the videos is protected by the CDA as Quiznos was merely hosting the website. Advertisers are concerned that they will no longer be able to run contests featuring user-created content comparing their product to a competitor’s. The case will be tried in a Connecticut federal district court in 2009.

Section 230 Does Not Bar Federal or State IP Claims

Under Section 230 of the CDA, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider,” and thus, “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.”  Section 230(e)(2), however, states that the CDA should not “be construed to limit or expand any law pertaining to intellectual property.” Consequently, the CDA will not bar IP claims asserted against a site operator. 

The defendant argued that the Ninth Circuit Court of Appeals’ decision in Perfect 10 v. CCBill LLC, 488 F.3d 1102 (9th Cir. 2007) limited Section 230(2) merely to federal IP claims and not state claims. The district court in Friendfinder, however, was not convinced that the Ninth Circuit interpreted that provision of the CDA properly.  

Instead, the court concluded that the plain language of Section 230(e)(2) suggested that neither federal nor state IP claims fall under the scope of the CDA. According to the district court, “The Ninth Circuit made no attempt to reckon with the presence of the term ‘any’ – or for that matter, the absence of term “federal” – in § 230(e)(2) when limiting it to federal intellectual property laws.” Thus, Section 230(e)(2) “applies simply to ‘any law pertaining to intellectual property,’ not just federal law.” 

Right of Publicity Is An IP Claim

The court then turned to the issue of whether the plaintiff’s invasion of privacy claim arises from intellectual property laws. An invasion of privacy claim encompasses four separate theories:  (1) the defendant intruded on the plaintiff’s solitude; (2) the defendant publicly disclosed private facts about the plaintiff; (3) the defendant cast the plaintiff a false light; and (4) the defendant appropriated plaintiff’s identity for their own benefit. According to the court, only the fourth theory (the right of publicity) has been recognized as an intellectual property right. Section 230 therefore would not prevent plaintiff from asserting such a claim against Friendfinder.

The court then held that in establishing a right of publicity claim, “some damage to the commercial value of an identity is presumed once it is proved that defendant has made an unpermitted use of some identifiable aspect of identity in such a commercial context that one can state that such damage is likely.” Since the plaintiff alleged that the site used portions of the plaintiff’s profile in search engine “teasers” and advertisements, the court found that the plaintiff had sufficiently set forth the claim. 

Ninth Circuit Maintains Limits on CDA Protection

In Fair Housing Counsel of San Fernando Valley v. Roommates.com, LLC, No. 04-57173 (9th Cir. April 3, 2008), another decision involving the CDA, the Ninth Circuit, sitting en banc, upheld its earlier decision that an online roommate matching website was not immune from liability under the CDA. In the prior opinion, the Ninth Circuit held, in part, that Roommates.com was not immunized from liability for posting questionnaires seeking information that could allow users to discriminate against other users in violation of the Fair Housing Act (“FHA”).

Writing for the 8-3 majority, Chief Judge Alex Kozinkski indicated that the Website lost immunity provided by the CDA because it facilitated discrimination rendered unlawful under the FHA. Judge Kozinkski stated, “Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business.”  Moreover, according to Judge Kozinkski, “This is no different from a real estate broker in real life saying, ‘Tell me whether you’re Jewish or you can find yourself another broker.’”  By facilitating unlawful discrimination, Roommates.com was rendered a publisher of discriminatory third party content, and therefore fell outside of the CDA’s immunity. 

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, the court addressed the scope of immunity granted under section 230(c) of the Communications Decency Act of 1996 (“CDA”). Section 230(c) provides immunity from civil lawsuits to interactive computer services for content posted on the website that is created by third parties. The section provides immunity from liability that would otherwise attach under federal or state law as a result of such publications, so long as the interactive computer service passively publishes the information. On the other hand, if the interactive computer service provider is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity.

An interactive form questionnaire that solicited information by the website operator from the third-party providing the content was the key to a new limitation on Section 230 immunity in the Fair Housing Counsel case.

The issue in Fair Housing Counsel was whether Roommates.com LLC (“Roommates”) is entitled to CDA immunity for potentially discriminatory material posted by users on their profiles. Roommates.com operates an online roommate matching website. The website helps individuals find roommates based on their descriptions of themselves and their roommate preferences. The Fair Housing Council of San Fernando Valley sued under the Fair Housing Act (and various state laws), alleging that Roommates runs afoul of the FHA’s anti-discrimination provisions in that it publishes the users’ preferences for having roommates of a particular race, sexual orientation, and gender.

In particular, the plaintiffs claimed that Roommates violates the FHA in three ways: (1) it creates and posts questionnaires on its website and requires individuals who want to take advantage of its services to complete them; (2) it posts and distributes by e-mail its members’ profiles; and (3) it posts the information its members provide in the “Additional Comments” section of the profile. For all three categories, the court framed the question as whether Roommates is responsible, in whole or in part, for the creation or development of the information. Importantly, the court was not addressing whether Roommates actually violated the FHA in any of these three ways, but only whether the conduct alleged was subject to CDA immunity.

As to plaintiffs’ first theory, the court held that Roommates was not entitled to CDA immunity. The court stated that Roommate is “responsible” for these questionnaires because it created or developed the forms and answer choices. As a result, Roommates is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.

The second theory presented a more difficult question for the court – whether the CDA exempts Roommates from liability for publishing and distributing its members’ profiles. The court distinguished a prior Ninth Circuit case, Carafano v. Metrosplash.com, Inc,. 339 F.3d 1119 (9th Cir. 2003), which held that a dating service website was not a content provider of defamatory information that a user posted on his profile. In Carafano, the dating site did not play a significant role in creating, developing or transforming the user’s allegedly defamatory statements.

The Roommates.com website was fundamentally different, however, because Roommates channels the information based on members’ answers to various questions, as well as the answers of other members. Thus, Roommates allows members to search only the profiles of members with “compatible” preferences. While this is a useful service, the court explained, the search mechanism and e-mail notifications mean that Roommates is neither a pass-through of information provided by others nor merely a facilitator of expression by individuals.

Finally, the court considered whether the CDA exemption applies for Roommates’ publishing the contents its members provide in the Additional Comments portion of their profile. While the responses in this section are often “provocative and revealing,” the majority concluded that Roommates’ involvement is insufficient to make it a content provider of these comments. Thus, CDA immunity applies to the comments posted in the Additional Comments section.

The panel remanded the case to district court for a determination on the merits of the FHA claim with respect to the non-immunized content.

This case is significant for website operators, including social networking and on-line dating sites, in that it defines some outer parameters for CDA immunity. In many prior cases, courts adopted expansive interpretations of CDA immunity, based, in part, on the Congress’ express policy goal of encouraging “the unfettered and unregulated development of free speech on the Internet.” Batzel v. Smith, 333 F.3d 1018, 1027 (9th Cir. 2003); see also, Carafano (holding that website was entitled to CDA immunity against suit for defamation and invasion of privacy arising from third party user’s posting of defamatory materials on the user’s profile page); Chicago Lawyers’ Committee for Civil Rights Under the Law, Inc. v. Craigslist, Inc., 461 F.Supp.2d 681 (N.D. Ill. 2006) (discussed here, holding that Craigslist was entitled to CDA immunity from a FHA suit for posting advertisements on its website that indicated a preference, limitation, or discrimination in the sale or rental of housing); Zeran v. America Online, Inc., 129 F.3d 327 (4th Cir. 1997) (stating that section 230 confers broad immunity as to all causes of action against Internet users or providers); but see Anthony v. Yahoo Inc., 421 F.Supp.2d 1257 (N.D. Cal. 2006) (holding that on-line dating service was not immune against allegations that it created false user profiles in order to trick new members into joining and stop current members from leaving).

The case also highlights an interesting conflict that website providers face between designing a site that is “useful” and one that minimizes the threat of litigation. At least under the majority analysis, a website operator may be immunized for actionable material posted in the “Additional Comments” – but not immunized if users respond to questionnaires with the same potentially actionable information.