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US Appellate Court (Ninth Circuit) Narrows the Scope of Immunity for Internet Intermediaries
In a decision that has the potential to significantly narrow the scope of immunity granted to Internet intermediaries under Section 230 of the U.S. Communications Decency Act, the Ninth Circuit Court of Appeals has reversed a district court decision that would have granted summary judgment to Roommates.com against the claims of the Fair Housing Councils of San Fernando Valley and San Diego. The Councils claimed that Roommates.com’s online roommate matching service violated the U.S. Fair Housing Act by encouraging users to advertise discriminatory preferences in connection with the rental of accommodation.
Relying on previous cases that have given a robust interpretation to Section 230, Roommates.com argued that it should be immune from liability on the grounds that the offending content was provided by the users themselves. However, the Ninth Circuit held that because Roommates.com created or developed the online forms that both required users to answer questions enabling others to discriminate and requested users to make discriminatory statements themselves, Roommates.com was a content provider in respect of these questionnaires and did not qualify for the immunity. Roommates.com required users to complete a series of drop-down menus identifying such characteristics as their sex, sexual orientation and whether children will be present, and prompted users to express their roommate preferences based on such characteristics.
Although two judges held that Roommates.com should be immune for the material posted by users in an Additional Comments text box at the end of the questionnaire, the third judge held that because this box immediately followed the offending parts of the questionnaire and implicitly encouraged users to elaborate on the discriminatory preferences already solicited, no immunity should be granted.
In what is likely the most controversial aspect of the decision, two of the three judges held that by categorizing, channeling and limiting the distribution of the information provided in users’ profiles (for example, by permitting users to view only listings with compatible preferences, and by sending users notifications that exclude listings incompatible with their profiles), Roommates.com developed and provided “an additional layer of information” that brought it outside the scope of the statutory immunity. The third judge would have held that a website operator may select and edit content provided by another without falling outside the scope of such immunity. In a blog posting on this decision, Professor Eric Goldman criticizes the majority’s holding as creating significant uncertainty for search engines and other website operators.
For a copy of the decision, visit:
http://shorl.com/prygojorijipri