Tuesday, May 22, 2007

Website Not Immune from Liability for Posting Questionnaires, Member Profiles

This posting was written by Bill Zale, editor of CCH Advertising Law Guide.

The Communications Decency Act did not immunize a roommate matching website (Roommates.com) from claims that it violated the Fair Housing Act by posting questionnaires, requiring their completion by would-be members, and by posting member's profiles and distributing them by e-mail, the U.S. Court of Appeals in San Francisco has ruled.

Content Provider

An entity cannot qualify for CDA immunity when it is responsible, in whole or in part, for the creation or development of the information at issue, according to the court. The website was responsible for its questionnaires because it created or developed the forms and answer choices. As a result, it was a content provider of the questionnaires and did not qualify for CDA immunity for their publication, the court determined.

A more difficult question was whether the CDA exempted the website from liability for publishing and distributing its members' profiles, which it generated from their answers to the questionnaires. The website did more than merely publish information it solicited from its members, the court noted. It also channeled the information based on the members' answers. It allowed members to search only the profiles of members with compatible preferences.

For example, a female room-seeker living with a child could search only profiles of room-providers who had indicated they were willing to live with women and children. In addition, the website sent room-seekers e-mail notifications that excluded listings incompatible with their profiles. Thus, the website would not notify a female about room-providers who said that they would not live with women.

Alleged Violation of Fair Housing Act

While the website provided a useful service, its search mechanism and e-mail notifications meant that it was 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, the website provided an additional layer of information that it was responsible at least in part for creating or developing. Whether these actions ultimately violated the Fair Housing Act was to be decided on remand.

The Communications Decency Act did immunize the website from claims that it violated the Fair Housing Act by publishing its members' “additional comments,” the court held. Members provided the information in question by filling in a blank text box. Next to this box, the website advised users that “[w]e 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.”

Preferences and Restrictions

The responses to this query produced the most provocative and revealing information in many users’ profiles. Some stated that they “Pref[er] white Male roommates,” while others declared that they were “NOT looking for black muslims” etc.

The website's involvement was insufficient to make it a content provider of these comments, in the court’s view. The website’s open-ended question suggested no particular information that was to be provided by members. The website did not prompt, encourage or solicit any of the inflammatory information provided by some of its members. Nor did the website use the information in the additional comments section to limit or channel access to listings. The website therefore was not responsible, in whole or in part, for the creation or development of its users’ answers to the open-ended additional comments form, and was immune from liability for publishing these responses, the court concluded.

The May 15 opinion in Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, No. 04-56916, will be reported in the CCH Advertising Law Guide.

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