Privacy Law Blog : Privacy Lawyers & Attorneys : Proskauer Rose Law Firm : CAN-SPAM, FCRA, FACTA

According to the International Association of Privacy Professionals, which broke the story on February 2, 2009, the charges against Fleischer are believed to be the first criminal sanctions pursued against a privacy professional for his company’s actions. Under European Union legislation that was incorporated into Italian law in 2003, Internet service providers (“ISPs”) are not responsible for monitoring third-party content posted to their sites, but are required to remove offensive content if a complaint is received. These laws offer to ISPs protections that are similar to those found under U.S. law in Section 230 of the Communications Decency Act of 1996. (See our Section 230 posts here.) But Italian authorities, specifically Milan public prosecutor Francesco Cajani, are prosecuting Google as an Internet content provider, rather than as an ISP, and Italy’s penal code states that such providers are responsible for third-party content on their sites. Cajani believes that Google, and its executives, violated this provision by allowing the 191-second clip to be uploaded to its video site.

On February 3, the Italian judge hearing the case -- which is expected to be ongoing for months -- suspended the proceedings until February 18 to consider procedural issues, but Google maintains that it did not violate any laws with respect to the video posting.  Also on February 3, the City of Milan joined the case with civil charges that Italian lawyers have cited as the rough-equivalent of class-action suit in the United States.  The city, according to Rocco Panetta, an Italian lawyer with Portolano Colella Cavallo, is representing several individuals it claims were injured by Google.

In a statement released on February 2, Google expressed sympathy for the victim’s family, but insisted that “We feel that bringing this case to court is totally wrong.  It’s akin to prosecuting mail service employees for hate speech letters sent in the post. What’s more, seeking to hold neutral platforms liable for content posted on them is a direct attack on a free, open Internet.  We will continue to vigorously defend our employees in this prosecution.” Google’s public policy counsel for Google Italia, Marco Pancini, further commented that “We are confident the process will end in our favor.”

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.

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.