Interactive Websites May Lose Protection Under the Communications Decency Act

On May 15, 2007, the 9th U.S. Circuit Court of Appeals created a significant exception to the immunity granted to a website operator under 47 U.S.C. § 230 “The Communications Decency Act” (“CDA”). The court held that can be held liable for publishing content from member questionnaires created by using drop-down menus and distributing member profiles, but is immune from liability for publishing users’ responses to open-ended fields or questions. (Fair Housing Council of San Fernando Valley v., LLC, 2007 WL 1412650 (9th Cir.). With this recent ruling, website operators will need to determine when the protection provided by the CDA for Internet services applies to its site. (“Roommate”) operates an online roommate matching website which helps people find roommates based on the descriptions and living preferences they provide. Roommate offers free membership, and members must simply provide answers to drop-down menus about themselves and the characteristics they are looking for in a potential roommate. The website also allows for “Additional Comments” by members in an open-ended box. The website then creates member profiles and sends e-mails to potential matches which then allows for members to view each other’s profiles and “Additional Comments.”

The Fair Housing Council of San Fernando Valley sued Roommate for violating the Fair Housing Act (“FHA”) and other state laws because it requires individuals to complete its questionnaires in order to qualify for its housing service, and allows individuals to state housing preference based on age, sex, sexual orientation, and presence of children in its drop-down menus (and presumably any other qualification the user posts in its “Additional Comments” about race, religion, etc.). The U.S. District Court for the Central District of California ruled that the protection given by the CDA barred the plaintiff’s claim of FHA violations, and granted summary judgment to Roommate.

On appeal, the Court reviewed whether Roommate qualified for CDA immunity from liability for publishing its membership questionnaires; for publishing and distributing member profiles; and for publishing content provided by members in the “Additional Comments” portion of the profiles. (The Court noted that at this stage of the proceedings it was not ruling on whether Roommate violated FHA, but whether it was immune from liability.) For each category, the question is “whether Roommate is ‘responsible, in whole or in part, for the creation or development of the information.’” Under the CDA, Congress provided immunity for website operators who passively publish content provided by others when the party would otherwise face liability under state or federal laws as a result of publishing the material. However, if an operator is “responsible, in whole or in part, for the creation or development of the information”, the operator moves from being an interactive computer service to an information content provider and loses immunity.

The Court held that Roommate does not qualify for CDA immunity for the publication of the questionnaires and member profiles, but is immune under the CDA from liability for publishing the content members provide in “Additional Comments.” The Court easily disposed of the questionnaire issue, finding that because Roommate created or developed the questionnaire and its answer choices, it was an information content provider under the CDA and could potentially be liable for their publication. The Court had a more lengthy debate about whether Roommate qualified for CDA immunity for publishing and distributing the member profiles. Ultimately the Court focused on how Roommate did not “merely publish information it solicits from its members. . . [but] also categorizes, channels and limits the distribution of users’ profiles.” Roommate “created or developed an additional layer of information” by allowing members to search only the profiles of members who have compatible living preferences, and therefore it loses immunity under the CDA from liability for publishing such information.

On the third issue of immunity for publishing the material in members’ “Additional Comments”, the Court held that Roommate was not involved enough to make it information content provider under the CDA and lose immunity. Because this section has an open-ended question, Roommate did not “prompt, encourage or solicit any of the inflammatory information provided by some of its members, [nor] does Roommate use the information in the ‘Additional Comments’ section to limit or channel access to listings.” Therefore, Roommate is immune from liability for publishing any response by members in “Additional Comments.” The Court reversed and remanded to the District Court to determine whether Roommate violated FHA by publishing the questionnaire and member profiles since the website was not immune under the CDA for that material.

Because of its wide reach, this decision will likely make many websites apprehensive about whether they may be liable for content published on their sites. As it is read now, any search engine or website that channels a user’s data to produce search results, such as Google or Monster, loses immunity under the CDA from liability. As a result, some website operators may choose to provide open-ended questions or fields for users, which will make searches less efficient but which are squarely in the Court’s analysis of conduct that does not lose CDA immunity.

This decision also presents more questions as to the scope of liability immunity under the CDA. The 9th Circuit previously decided Carafano v., Inc. in which an individual created a fraudulent profile for Carafano, an actress, on an on-line dating service with defamatory statements in the profile. Similar to Roommate, the dating website required users to answer questionnaires using drop-down menus with prepared responses and open-ended essay questions. There, the Court held that the dating service was immune under the CDA from liability for publishing this false information. In Roommate, the Court distinguished Carafano by stating that the dating service requested information about the user and not a third party (i.e. a potential roommate) and that the dating service did not request the untrue information that the party submitted about Carafano. Lower courts and website operators may have a difficult time determining when a dispute fits into the Carafano analysis or the Roommate analysis. Additionally, many analysts have argued the 9th Circuit erred in not following what appeared to be precedent in Carafano when it decided Roommate.

Does this decision mean the Internet has to restrict information previously available to users because of increased liability? It appears the answer is no. However, the decision does put pressure on Internet service providers to structure their websites appropriately in order to avoid liability for publishing its users’ content.