We have previously discussed (in the December 2006 Memorandum to Clients and the January 2007 FHH Telecom Law) the immunity from defamation and other types of lawsuits that is available to website operators under Section 230 of the Communications Decency Act of 1996. That section states that "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." It has been interpreted broadly by several state and federal courts over the past 10 years, to the point essentially only the original writer or poster of content on an Internet website can be held liable for those statements. Any others who repost or simply host the site are immunize from virtually any lawsuit (criminal charges, such as those brought for obscenity and intellectual property lawsuits for copyright or trademark infringement can still be brought). This immunity exist regardless of whether the owner of the website has actively edited content or not.
A decision issued yesterday by the United States Court of Appeals for the Ninth Circuit presents an interesting wrinkle to Section 230 immunity. The case, Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, involves a lawsuit brought under the Fair Housing Act. Roommates.com, a website that allows interested parties to fill out questionnaires to find potential roommates in a certain locale. The site works much like a dating website in that it actively solicits information from users by asking questions and providing standard answers to be completed. For instance, users are asked for their gender, sexual orientation, race and religion. Though these are all intended for informational purpose, the Fair Housing Council alleged that even entering these considerations into the housing process constituted a violation of the Fair Housing Act by potentially denying housing to persons based on race, religion, gender and sexual orientation.
Roommates.com invoked Section 230 in its defense, saying that it was not posting any information in violation of the Fair Housing Act. However, in a severely fractured 2-1 decision, the Court of Appeals disagreed, in part. It did say that Roommates.com could not be held liable for any information that was created and posted, without any prompting, by a user of the site (users do have the ability to augment their standard responses and discuss themselves in more detail in their profiles) However, the court said that the creation of standard questions with drop down menus that offer mandatory responses from users (such as male or female, or sexual orientation of the user) are actually content created by Roommates.com, even if the user must choose the actual answer to each question. For that reason, Roommates.com is considered the original creator of that content. Section 230 does not protect Roommates.com from being sued for this portion of the response (though it cannot be sued for anything written by a user in the additional comments portion of the profile).
The United States Court of Appeals remanded the case to the United States District Court, who will determine whether, in fact, the questions asked and answered in the drop down menu portion of the profiles violate the Fair Housing Act.