Wednesday, May 16, 2007

Summary of the decision

The United States Court of Appeals for the Ninth Circuit ruled yesterday in Fair Housing Council of San Fernando Valley, et al v., LLC. Signaling the differing viewpoints on the issues presented, the three judge panel - Circuit Judges Reinhardt, Kozinski and Ikuta - issued three separate opinions in the case. Circuit Judge Kozinski wrote for the Court., LLC operates an online roommate matching website - (“Roommate” or “”). As the court explained, “[t]his website helps individuals find roommates based on their descriptions of themselves and their roommate preferences. has approximately 150,000 active listings and receives about a million page views per day.” Two California-based housing councils (“Councils”) alleged that Roommate violates the Fair Housing Act by (1) posting its questionnaires on its website and requiring individuals who want to take advantage of its services to complete them; (2) posting and distributing by email its members’ profiles; and (3) posting the information its members provide on a “Additional Comments” form. Thus the allegations are somewhat similar to those made in the craigslist case filed last year in Illinois and presently on appeal to the Seventh Circuit.

At issue before the Ninth Circuit was whether and to what extent the Communications Decency Act (“CDA”), 47 U.S.C. § 230(c), immunizes Roommate’s actions. Section 230(c) provides that “[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” Because the Councils do not deny that Roommate is a provider of an interactive service, “the question is whether Roommate is “responsible, in whole or in part, for the creation or development of [the] information” set forth in each category, and thus ineligible for immunity. In other words, immunity is available if Roommate “merely publishes information provided by its members[,]” but Roommate “is not immune for publishing materials as to which it is an “information content provider” (defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet.”)

Questionnaires. The Court concluded that Roommate is ‘responsible’ for the questionnaire because “it created or developed the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.” The Court left it to the district court to determine if same violates the Fair Housing Act.

Profiles. As for the user profiles, the Court declined to apply the rationale in the Ninth Circuit’s prior decision in Carafano, where (i) a prankster provided information about someone else that (ii) was not solicited by the operator of the website. Instead, the Court noted that Roommate’s “search mechanism and email notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals. By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.” Concluding that CDA immunity was not available, the Court remanded for a determination of whether the profile allegations, if proven, violate the FHA.

Additional Comments. As for the third category identified by the Councils, the Court concluded that because Roommate is not “responsible, in whole or in part, for the creation or development of its users’ answers to the open-ended 'Additional Comments' form,” it is immune from liability for publishing these responses.

We’ll have to wait and see what this means for the craigslist appeal. Of course a rehearing before the panel or en banc consideration may be forthcoming. However, to the extent the Seventh Circuit is persuaded by yesterday’s ruling (note that the Seventh Circuit is not often persuaded by the Ninth Circuit as to anything), it would seem that a careful comparison of the Roommates and craigslist mechanisms would be critical in resolving the craigslist case. Regardless, given some of the language and examples used in the Ninth Circuit’s opinion, certain sites that have garnered much attention recently – and – for publishing user critiques of bad business and dating experiences, respectively, should study the Ninth Circuit's opinion carefully.

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