Court Rules on Website Immunity

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.

•  Tips, Flames, Libelous Comments

  Please leave your comments below, and I have no opinion as to their slanderous nature.

  by TakeBackTheHouse on Fri Apr 04, 2008 at 10:01:28 AM PDT

•  It seems asking if a person way gay or not

  was a violation of their privacy

  by SensibleDemocrat on Fri Apr 04, 2008 at 10:03:48 AM PDT

  •  Were these folks

    being forced to use the website?

    It seems to me that if you 'opt' to use any given website, you've implicitly accepted whatever rules the website has.

    If you don't want to fill in such information, don't use the website.

    by drbloodaxe on Fri Apr 04, 2008 at 11:03:40 AM PDT

•  what about section 230?

  Doesn't that generally protect bloggers from stuff people say in comments? Does this go against that?

  by VelvetElvis on Fri Apr 04, 2008 at 10:06:39 AM PDT

  •  General comments are different

    than a required fill-in-the-field set of information.

    by ccr4nine on Fri Apr 04, 2008 at 10:13:49 AM PDT

  •  I think the opinion speaks for itself....

    the site itself set criteria for comments--in the court's opinions that made the site itself subject to nondiscrimination laws. Unprompted or unguided comments were ok.

    by Azdak on Fri Apr 04, 2008 at 10:14:06 AM PDT

  •  Yes

    There was a lot of discussion if 47 U.S.C. § 230 applied.

    They repeatedly held it doesn't because of Roommates' processing of the information got them involved.

    They didn't rule on if 1st Amendment protections apply, just that 230 doesn't stop action against Roommates.

    There is a part of the code that defines an 'information content provider' as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service..."

    They said that soliciting information in the way they did made them 'in part' the creators and developers of the information.

    by TakeBackTheHouse on Fri Apr 04, 2008 at 10:17:42 AM PDT

    •  thank you

      that's exactly what I wanted to know

      by VelvetElvis on Fri Apr 04, 2008 at 10:20:55 AM PDT

•  Thanks. This is an important update

  The Fair Housing Act is serious business. So if you have a fill-in-the-field question about racial preferences, you are in clear violation. Same with gender, age, handicap-status, ethnicity, religion, etc.

  There are other laws out there that we could inadvertently violate, so it's good to be aware when we are posting.

  Thanks again.

  by ccr4nine on Fri Apr 04, 2008 at 10:12:42 AM PDT

•  Surely the simple way to get around

  the ruling would simply to have a 'no comment' option on all such dropdowns, so that you weren't 'forcing' anyone to answer anything, they were 'opting in' on their answers.

  But really, what ass even brought such a lawsuit up?  Nobody forces you to use any given website in your quest for housing, food, a job, etc, etc.  You choose to use a website.

  by drbloodaxe on Fri Apr 04, 2008 at 11:02:05 AM PDT

  •  Two civil rights organizations filed the suit

    and thousands upon thousands of housing opportunities were at stake in what is at least in California already a housing crisis.

    by Gary In Los Angeles on Fri Apr 04, 2008 at 11:14:25 AM PDT

    •  Well

      I can see why civil rights groups would think they belonged in the fray, but I just disagree with them on this.  I still feel  visiting any non-governmental website is by definition opt-in, unless something actually compels you to use it.  If landlords were posting signs that they were only renting to people based on users of the website, I could understand the groups suing the landlords there.  But if the site itself isn't renting out properties, I think the court made a bad decision on this one.

      by drbloodaxe on Fri Apr 04, 2008 at 11:30:08 AM PDT

•  Blocking Access to Housing

  on the basis of sexual orientation, gender and family status was the main problem in this case. The website, which also catered to landlords, simply would not allow a tenant to even peruse the listings unless she provided the very characteristics that are protected by the civil rights laws.  The website' computer then used that information to determine which listings the tenant would get to see.  (the website's arguments for immunity would have meant that it could have demanded race information as well).  I was the original attorney for the plaintiffs before becoming a prosecutor, and agree with the other commments posted here that this case protecting housing rights is limited to websites that put themselves between people and homes.

  by Gary In Los Angeles on Fri Apr 04, 2008 at 11:12:19 AM PDT