Imagine a website that allows people to post comments or content anonymously, to protect their privacy. Pretty common. Now imagine that the website assists the poster through an interactive online questionnaire seeking specific categories of information. Under a new ruling of the Ninth Circuit, the anonymous poster who provides the information may escape detection and liability, while the website operator may be held responsible. This is a big change in the law of website operator immunity.
On May 15, 2007, the Ninth Circuit Court of Appeals issued an opinion written by Judge Alex Kozinski that may have significant consequences for interactive website operators.
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.