Ninth Circuit Decision Diminishes the Protections Afforded by the Communications Decency Act

Communications Decency Act Immunity:  A critical decision was made last summer by the United States Court of Appeals for the Ninth Circuit, which could have significant impact on how user-content based websites are structured.  In Fair Housing Council of San Fernando Valley , et. al., v. Roommate.com, LLC, the Court held that the owner of roommate.com could not avail itself of the protections afforded by the Communications Decency Act with regard to an alleged violation of the Fair Housing Act and various other state laws.  Indeed, this was the critical issue of this case.

Generally, websites such as roommate.com, where the content is provided by website users rather than the website producer itself, try to avail themselves of the protections of the Communications Decency Act.  This law provides certain immunities to Internet Service Providers (i.e. AOL), but has been interpreted broadly.  Many courts have found that if a website provides a forum for others’ speech that the website itself should not be liable for the individuals’ speech.
In the instant case, the website generally provided a forum for website visitors to post requests for potential roommates.  The avenue for the requests was not simply an open forum where the website visitors authored their own text.  Rather, in addition to an open comments field, the site provided drop down windows for its users to complete.  Specifically, the Court noted that “[t]o become members of Roommate[.com], users respond to a series of online questionnaires by choosing from answers in drop-down and select-a-box menus.  Users must disclose information about themselves and their roommate preferences based on characteristics such as age, sex and whether children will live in the household.  They can then provide “Additional Comments through an open-ended essay prompt.”  The argument raised by the Fair Housing Council was that by providing these drop-down menu options, roommate.com essentially participated in the users’ speech.  Accordingly, if the user engaged in discriminatory speech (i.e. posting an intent to only consider applicants based on their gender, race, familial status, sexual orientation or other discriminatory criteria), the website itself “helped” the user do so by providing the drop-down menus.  The Court held that the website therefore essentially was part of the efforts of its users to discriminate in their housing choices.
The Court decided that by providing those drop-down windows, the speech was not just that of the individual-users.  Rather the website itself assisted in the discriminatory application language.  The Court stated that “Roommate[.com] is immune so long as it merely publishes information provided by its members. . . However, Roommate[.com] is not immune for publishing materials as to which it is an ‘information content provider.’ A content provider is ‘any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet.’”
Accordingly, the Court held that with regard to the content within the drop-down windows questionnaire Roommate.com, could not avail itself of the immunity provided by the Communications Decency Act.  However, Roommate.com was protected under that statute with regard to speech contained in the “additional comments,” section of the website:  “Roomate[.com]’s open-ended question suggests no particular information that is to be provided by members; Roomate[.com] certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members.”
We therefore recommend the following:
·  First, and foremost, be sure that you structure your website in a manner that allows website users to provide their own content in an open-forum.  Ensure that you are not providing any of the content for them.  In other words, ensure that you do not make the same mistake that roommates.com did: do not have drop down windows or other “choices” for the users to elect from in order to create their content.
·      You should also closely monitor your website for users’ wrongful conduct, including posting discriminatory or defamatory content.  You should endeavor to keep such vulnerable content off of your website. 

Comments/Questions: ljm@gdnlaw.com