The Ninth Circuit, with its recent decision in Fair Housing Council of San Fernando Valley vs. Roommates.com, LLC,1 has notably bucked the trend of courts finding various online entities to be immune from certain causes of action due to protection available under the Communications Decency Act (“CDA”).2 Until recently,3 a string of CDA cases proscribed broad protection for multiple types of online entities at the expense of plaintiffs. For example, an early CDA case granted immunity to America Online (a classic Internet Service Provider) for claims related to allegedly defamatory material posted to a message board.4 Later cases applied CDA immunity to:
- eBay.com for claims related to endorsements posted at user forums;5
- a listserv distributor for claims related to content drafted by third parties and re-published inside of listserv messages;6
- Craigslist.com for claims related to discriminatory content posted by third parties inside of ads for housing;7 and
- claims rooted in state intellectual property law.8
Despite this trend, the Ninth Circuit, in Fair Housing Council of San Fernando Valley, held that the CDA did not immunize defendant Roommates.com from potential liability under the Fair Housing Act ("FHA") related to member profiles. The critical issue in most CDA cases is whether the defendant is itself an information content provider or whether it is simply publishing (or re-publishing) content submitted by third parties. The line between mere content publisher and content provider can blur when a web site asks users questions, and, particularly, questions for which the answers may lead to or encourage a legal violation. The more specific the questions at-issue and the more a web site helps users generate the responses at-issue, the more likely a web site is to be considered a content provider. Further, and as demonstrated by the Roommates.com decision, when a web site uses sorting or matching functionality in connection with user content to provide an additional layer of content, CDA immunity may not apply.
Roommates.com offered those seeking roommates and those with a room to rent a central meeting place to connect and find a match. The site required members seeking roommates to create a profile and complete a “My Roommate Preferences” form describing the dwelling available (or the dwelling in which they are interested), themselves, and their desired roommate. To accomplish these tasks, users responded to a series of questions, including several mandatory questions, drafted by Roommates.com. For example, users looking for a room were asked to identify themselves as "Male" or "Female.” Individuals looking to rent out a room were asked about the sexual orientation of those currently living in the household. The “My Roommate Preferences” form included questions related to gender, sexual orientation and the presence of children.
In addition to providing users with these questions, Roommates.com allowed users to search for potential roommates with profiles compatible with their preferences. E-mail notifications sent by Roommates.com with potential matches were also filtered by Roommate.com to exclude incompatible users.
The court held that the combination of Roommates.com questions and prompts along with how Roommates.com categorized and channeled submitted information made Roommates.com responsible, at least in part, for creating or developing the content that formed the basis of the plaintiffs' FHA claim.
According to the court, “by categorizing, channeling and limiting the distribution of users profiles, Roommates.com provides an additional layer of information that it is responsible at least in part for developing.”9 The court also compared Roommates.com to a hypothetical site that provided: “a forum designed to publish sensitive and defamatory information, and suggested the type of information that might be disclosed to best harass and endanger the targets”.10
The Ninth Circuit remanded the case to the district court for a determination of whether Roommates.com violated the FHA.
As demonstrated by the Ninth Circuit’s Fair Housing Council of San Fernando Valley decision, it is important for online entities that accept and post user-generated content to evaluate whether current and planned functionality could lead a court to determine that the entity is acting as an information content provider and not a mere publisher of third party materials. For additional information, please contact Michael Bennett at (312)-201-2679 or Ryan Sulkin at (312)-201-2816.