The 9th Circuit Court ruled en banc in a matter concerning Roommates.com that directly concerned the Fair Housing Act, but may have a larger impact on issues facing website managers.
Was Roommates.com just a bulletin board for ads or were they an advertiser when they provided information about race, family status, and sexual preference that would normally be excluded from advertisements for housing?
The ruling held that the website was not just a passive conveyor of information posted by others, but that the structure of the site made them part of the creation and development of the information, and subject to the antidescrimination rules.
If you make comments on this web forum that are subject to legal action, I am not held liable. Roommates.com argued that those rules should apply to them as well.
The court found however that to list your ad on Roommates.com you were forced to answer certain questions. Those questions, it found, can be considered Roommates.com's own communications.
Craig's list is searchable by any words, but Roommates.com made its site searchable by specific criteria that were banned by the Act. The court felt that this also placed them in a position where they were more than just the neutral pipeline of the information.
The court said that Roommates.com was on safe ground with their 'additional comments' box, because the wording where they said they, "strongly recommend taking a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate," was content neutral and did not prompt discriminatory action.
One potential impact of this for political sites, or other sites that enable the flow of information: inviting comments may keep the diarist and site owners from losing immunity, but prompting specific and libelous comments may draw the diarist into the fray. That is something to consider when creating poll options, or anything else that has pre-populated fields.