Publications

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The recent court rulings by the United States Court of Appeals for the Ninth Circuit in Fair Housing Council of San Fernando Valley v. Roomates.com, LLC¹ and the United States Court of Appeals for the Seventh Circuit in Chicago Lawyers Committee for Civil Rights under Law, Inc. v. Craigslist, Inc.² provide specific guidance regarding the scope of immunity under Section 230(c) of the Communications Decency Act for providers of interactive computer services for liability arising from content created by third parties.

The Communications Decency Act, 47 U.S.C. § 230(c) (Section 230(c)) has become a critical defense for e-commerce businesses and other interactive computer service providers (which include ISPs, websites, online services, search engines, and others) respecting claims arising in connection with content provided by others. These cases, involving the hot button issue of housing discrimination, offered both circuits the opportunity to cut back on the broad immunity provided by Section 230. However, the decisions did not do so, and are largely consistent with the body of Section 230 case law that recognizes broad immunity for interactive computer services under this statute.

Section 230(c)

Section 230(c) consists of the following two subparts:

(1) Treatment of publisher or speaker. 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.

(2) Civil liability. No provider or user of an interactive computer service shall be held liable on account of – (A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or (B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

The purpose of these provisions was to protect Internet and online companies from liability for content provided by third parties. The statute has been construed to protect these entities from a very broad range of tort liability. However, it does not apply to intellectual property claims, violations of federal criminal law, or violations of communications privacy statutes. 47 U.S.C. § 230(e).

The Craigslist, Inc. Ruling

In Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., the Court of Appeals for the Seventh Circuit confirmed the broad protection for online information system providers and other interactive computer service providers under Section 230(c) with respect to claims relating to content created by third parties.

The Chicago Lawyers’ Committee for Civil Rights Under Law, on behalf of its members, alleged that Craigslist, which provides an electronic forum for people who want to buy, sell, or rent housing, among many other goods and services, violated Section 804(a) of the Fair Housing Act, 42 U.S.C. § 3604(a), by publishing discriminatory statements or advertisements with respect to the sale or rental of a dwelling that indicated preferences, limitations, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination. This statutory prohibition under Section 3604(c) of the Fair Housing Act is enforced regularly against newspapers and other publishers.

The question for the Seventh Circuit was whether Section 230(c) provides immunity to Craigslist in connection with claims asserted under the Fair Housing Act related to alleged discriminatory statements. At the outset, the Seventh Circuit gave a simple explanation of Section 230(c)(1). Under that section, an online system must not be treated as the publisher or speaker of any information provided by someone else. The Seventh Circuit further observed that Craigslist could only be liable under Section 3604(c) of the Fair Housing Act if Craigslist was the publisher of the statements and advertisements in question. Since Section 230(c)(1) provides that Craigslist could not be treated as a publisher of any information provided by someone else, Craigslist was found not liable for any statements or advertisements provided by someone else for publication on the Craigslist site.

The opinion was authored by Judge Easterbrook, who in a previous opinion, Doe v. GTE, 355 F.3d 655, had suggested in dictum that Section 230(c)(1) is a definitional clause, rather than a separate provision creating immunity from liability. His Craigslist opinion recites the dictum from Doe, but goes on to apply immunity in a case where the defendant was not being sued for attempting to restrict objectionable content. Under this interpretation, an entity would remain a “provider or user” and thus be eligible for the immunity under Section 230(c)(2) as long as the information came from someone else; but it would become a “publisher or speaker” and lose the benefit of § 230(c)(2) if it created the objectionable content.

This decision is line with Section 230 decisions in the 1st, 3rd, 9th and 10th Circuits holding that Section 230 does not prevent legal action against the creator of the allegedly discriminatory content but does protect the online information systems provider that publishes the content. Congress intended Section 230(c) to confer immunity on interactive computer services that act as publishers and that host third-party content. If the interactive computer service adds its own content to third-party content, it risks losing the immunity protection under Section 230(c) because the additions may make the information systems provider a content provider.

The Roommates.com, LLC Ruling

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, the Fair Housing Council of San Fernando Valley (FHC) alleged violations of the Fair Housing Act and similar state laws by Roommates.com (Roommates).

Roommates argued that it had immunity from liability under the Communications Decency Act, Section 230(c). FHC specifically alleged that three activities engaged in by Roommates violated federal and state anti-discrimination laws: (1) requiring members to complete the questionnaires on the website; (2) posting of members’ profiles, and distribution of newsletters by e-mail based on members’ profiles; and (3) posting the information provided by members in the “Additional Comments” form.

Roommates owned and operated a website designed to help individuals find compatible roommates. Roommates subscribers could create a profile and conduct a search for compatible roommates using a search engine. Subscribers were required to fill out a questionnaire posing certain personal questions which would then be posted as their online profile. Part of the profile’s questionnaire required subscribers to disclose their sex, sexual orientation, and family status. FHC alleged that some of the questions posed in the questionnaire, and the answers it elicited, such as gender and sexual preference, were discriminatory under state and federal law. Similarly, FHC alleged that the search engine used to search for compatible roommates allowed users to search based on discriminatory criteria and thus was akin to “steering” housing applicants based upon discriminatory preferences and violated the Fair Housing Act. Finally, paying subscribers were given the option to write their roommate preferences in the “Additional Comments” section of their Roommates profile page; some subscribers posted discriminatory requests that FHC alleged were induced by the initial discriminatory questionnaire.

FHC’s First Charge

FHC first argued that the questions Roommates posed to prospective subscribers during the site registration process, which required subscribers to disclose their sex, family status, and sexual orientation, indicated an intent to discriminate against such subscribers, and thus violated state and federal law.

Section 230(c) immunizes providers of interactive computer services against liability arising from content created by third parties. However, this grant of immunity applies only if the interactive computer service provider is not also an “information content provider,” who is “responsible, in whole or in part, for the creation or development of” the offending content. If a website passively displays content which is created entirely by third parties, then it is only a service provider and will be granted immunity under Section 230(c). On the other hand, if the interactive computer service provider creates the content itself, or is “responsible, in whole or in part” for creating or developing such content, the website is also a content provider and will not benefit from Section 230(c) immunity.

Roommates, and not any third party, created both the questions and the choice of answers for its website registration system. The court thus concluded that Roommates was “undoubtedly the ‘information content provider’ as to the questions”; thus, Roommates could claim no immunity under the Section 230(c) for posting the allegedly unlawful questions on its website.

FHC’s Second Charge

FHC also argued that Roommate’s development and display of subscribers’ discriminatory preferences was unlawful. Roommates published a “profile page” for each subscriber on its website. The content of these pages was drawn directly from each subscriber’s answers to the allegedly discriminatory questions posed by Roommates during the registration process.

Subscribers who wished to use Roommate’s services were required to respond to the questions posed by Roommates, which included inquiries into the sex, family status, and sexual orientation of the user. By requiring subscribers to respond to its questions as a condition of accessing its service, and restricting the available answer choices to a set of pre–populated answers, Roommates became much more than a passive transmitter of information provided by others; it became the developer, at least in part, of that information. Because Roommates was a developer of the information on each subscriber’s profile page, the court held that Roommates was not entitled to immunity under Section 230(c) against liability for the publishing of those allegedly unlawful profile pages.

The court also held that Roommates was not entitled to Section 230(c) immunity for the operation of its search engine system because its search engine system steers users and limits search results based on the allegedly unlawful criteria that Roommates forces subscribers to disclose as a condition of using its site. The court found that by providing the discriminatory parameters that govern the results of subscriber’s searches, Roommates was responsible, at least in part, for the development of the allegedly unlawful searches. This ruling is a narrow one. The court stressed that generic search engines do not use unlawful criteria or discriminatory parameters to limit the scope of searches conducted on them. These search engines provide neutral tools, which may or may not be used by users to carry out unlawful or illicit searches. As a result, these generic search engines do not contribute to any unlawfulness in the individual user’s conduct, and thus play no part in the “development” of any unlawful searches.

In reaching the conclusions above, the court interpreted the term “development” to refer not merely to augmenting content generally, but to materially contributing to its alleged unlawfulness. A website helps to “develop” unlawful content, and is not entitled to immunity under Section 230(c), if it contributes materially to the alleged illegality of the conduct. The court characterized this current interpretation of Section 230 as consistent with its holding in the earlier case of Batzel v. Smith.³ In that case, the court held that an editor’s minor changes to the spelling, grammar, and length of third-party content did not strip him of Section 230(c) immunity, since none of those changes contributed to the unlawfulness of the message and thus did not add up to “development.”

FHC’s Third Charge

Lastly, FHC argued that the “Additional Comments” section of the subscriber’s profile page violated federal and state law. This section granted subscribers the option to personalize their profiles by describing what they were looking for in a roommate. Subscribers could write any remarks they liked in the “Additional Comments” section. Using this option, a number of subscribers posted discriminatory comments on their profile pages, such as “NOT looking for black muslims” or “[p]ref[er] white Male roommates.” Roommates would not alter or edit these comments in any way and simply published them as written.

FHC claimed that, given the context of the discriminatory questions posed by Roommates earlier in the registration process, the “Additional Comments” section implied that users should make discriminatory statements; by requiring discriminatory preferences to be stated in the registration process, Roommates encouraged users to make other discriminatory preferences known as well. The court found illogical the argument that discriminatory questions posed earlier in the registration process could lead to users posting discriminatory remarks later on in the process.

This use of the “Additional Comments” section, the court added, certainly did not strip Roommates of Section 230(c) immunity. The court found that immunity should be lost when it is “very clear” that the website “directly participates” in the illegality. The “Additional Comments” section of the Roommates website may have inferred or implied certain behavior, but that did not rise to the level of direct participation that would destroy the site’s Section 230(c) immunity.

Thus, Roommates and other websites are not responsible for the development of content which comes entirely from subscribers and is passively displayed on the website. The court in Roommates compared the “Additional Comments” section to the service described in Chicago Lawyers’ Committee for Civil Rights under Law, Inc. v. Craigslist, Inc. In Craigslist, the court noted that the service gave users an open text prompt to write their comments in, similar to the “Additional Comments” section on the Roommates site. Users could then enter their description of the rental property without any structure imposed on the content. The court in Craigslist found that nothing in the service induced anyone to post an expression of discrimination. Similarly, the court in Roommates found that the “Additional Comments” section did not contribute to the discriminatory acts, but simply passively displayed them, and therefore should be given immunity under Section 230(c).

There are many ways in which a website may indirectly encourage illegal behavior. While its decision sets out a number of active behaviors that make an interactive computer service lose Section 230 protection, the decision ends by stressing that immunity should apply "in close cases" and unless "it is very clear that the website directly participates in developing the alleged illegality." Otherwise, thousands of websites might face unnecessary litigation.

Guidance Regarding Basic Immunity Rules

A few principles emerge from the decisions and reasoning above regarding the availability and scope of immunity under Section 230(c). E-commerce businesses and other interactive computer services (ICS) should keep these principles in mind to be confident of enjoying the statutory immunity of Section 230(c) with respect to content provided by others:

• Section 230(c) immunizes ICSs against liability arising from content created by third parties. However, an ICS will lose the benefit of any immunity conferred by Section 230 (c) if it creates the allegedly unlawful content on its site or publishes material from a third party that has not been provided to it for online posting.
• Editing of user-generated content by an ICS is permitted without the ICS becoming liable for the content. A website operator may edit user-created content by correcting spelling, removing obscenities, or trimming for length without losing immunity for any illegality in the user-created content. However, if an ICS edits in a manner that contributes to the alleged illegality, such as by making third-party content libelous, it will not be immune under Section 230(c).
• If an ICS edits in a manner such that it is simply determining whether user-created content should be included or excluded from its website, then it will be immune from liability for failing to detect and remove unlawful content.
• If an ICS passively displays content that is created entirely by third parties (for example, responses to open fields on a website), it will not be held liable for failing to detect and remove unlawful content.
• If it requires users to answer specific questions in order to use its site, or limits or restricts the answers to such questions, an ICS should consider those questions and answers carefully. At least in the 9th Circuit, , the ICS will likely be deemed a developer of the information submitted by users, and therefore will not be immune under the Section 230(c) from liability should such information prove to be unlawful.
• However, If an ICS provides neutral tools for users to navigate and search websites, it will be fully protected by Section 230(c) immunity against liability for a user’s unlawful searches.

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1 2008 WL 879293 (9th Cir. April 3, 2008)