Online Publishing Law

On April 3, the 9th Circuit handed down its eagerly awaited en banc decision in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, Nos. 04-56916, 04-57173, 2008 WL 879293 (9th Cir. April 3, 2008), holding that Section 230 of the Communications Decency Act does not immunize defendant Roommates.com (“Roommate”) for some of the site’s content because of the way it collected and filtered user information. Namely, the site requires users to identify their gender, sexual orientation and familial status and then uses that information to send e-mail communications to its customers with compatible preferences.

The CDA § 230 states: “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.” Under § 230 an “information content provider” is defined as one who is “responsible, in whole or in part, for the creation or development of” content.

First, the court held Roommate could not be immunized for the questions it posed via drop down menus.

The FHA makes it unlawful to ask certain discriminatory questions for a very good reason: Unlawful questions solicit (a.k.a.“develop”) unlawful answers. Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business. 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.”When a business enterprise extracts such information from potential customers as a condition of accepting them as clients, it is no stretch to say that the enterprise is responsible, at least in part, for developing that information.

Id. at *4.

Furthermore, the court held Roommate could not be immunized by § 230 based on the way it channeled and filtered information.

Here, Roommate’s connection to the discriminatory filtering process is direct and palpable: Roommate designed its search and email systems to limit the listings available to subscribers based on sex, sexual orientation and presence of children. Roommate selected the criteria used to hide listings, and Councils allege that the act of hiding certain listings is itself unlawful under the Fair Housing Act, which prohibits brokers from steering clients in accordance with discriminatory preferences. We need not decide the merits of Councils’ claim to hold that Roommate is sufficiently involved with the design and operation of the search and email systems-which are engineered to limit access to housing on the basis of the protected characteristics elicited by the registration process-so as to forfeit any immunity to which it was otherwise entitled under section 230.

Id. at *7.

The court arrived at the aforementioned conclusion by defining “development” as follows.

We believe that both the immunity for passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret the term “development” as referring not merely to augmenting the content generally, but to materially contributing to its alleged unlawfulness. In other words, a website helps to develop unlawful content, and thus falls within the exception to section 230, if it contributes materially to the alleged illegality of the conduct.”

Id. at *5.

The court, in an attempt to clarify the meaning of “develop” may have broadened (or at least blurred) its definition. Drawing the line as to whether an interactive service provider is a “developer” of information may become more difficult in the future.

However, the 9th Circuit held that Roommate would be immunized by § 230 for what people wrote in response to the “Additional Comments” section, because the input field was open-ended.

Lurking behind the holding could be the view that the internet has matured and is no longer a new medium to be treated with deference in order to let it develop.

The Internet is no longer a fragile new means of communication that could easily be smothered in the cradle by overzealous enforcement of laws and regulations applicable to brick-and-mortar businesses. Rather, it has become a dominant-perhaps the preeminent-means through which commerce is conducted. And its vast reach into the lives of millions is exactly why we must be careful not to exceed the scope of the immunity provided by Congress and thus give online businesses an unfair advantage over their real-world counterparts, which must comply with laws of general applicability.

Id. at *3, n.15.

Ah, the pendulum has indeed begun to swing away from broad § 230 immunity. As most web services gain their functionality through channeling and filtering information, expect plaintiffs to read the holding of this decision broadly.