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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Chicago Lawyers' Committee For Civil Rights Under The Law, Inc. v. Craigslist, Inc.

461 F.Supp.2d 681, Case No. 06 C 0657 (N.D. Ill., November 14, 2006) aff'd -- F.3d -- (7th Cir. Mar. 14, 2008)

Communications Decency Act Immunizes Craigslist From Liability Under Fair Housing Act

Court holds that the Communications Decency Act ("CDA") immunizes defendant Craigslist, Inc. ("Craigslist") from liability for publishing housing ads authored by third parties that allegedly violate the Fair Housing Act, 42 U.S.C. § 3604(c) ("FHA").  In reaching this result, the Court held that the immunity afforded internet service providers under section 230(c)(1) of the CDA only extends to claims seeking to hold an ISP liable as a publisher for content authored by third parties, and not to all claims arising out of the ISP's role in giving the public access to such content.  Because the FHA claims at issue were premised on Craigslist's publication of offensive ads authored by third parties, the Court held they were barred by the immunity granted under Section 230(c)(1).

Discriminatory Housing Ads Authored By Third Parties Published By Craigslist 

Craigslist publishes classified ads authored by third parties on the Internet.  In a typical month, Craigslist publishes over 10 million such ads.  Included within these advertisements are housing ads.

Plaintiff the Chicago Lawyers' Committee for Civil Rights Under the Law Inc. ("CLC") is a consortium of law firms that, among other things, seeks to eliminate discriminatory housing practices.  According to the CLC, Craigslist published on its web site a number of discriminatory housing ads authored by third parties that impermissibly indicated a preference, or limitation, on the prospective occupant based on race, color, national origin, sex, religion or familial status.

Claiming such conduct runs afoul of the FHA, the CLC brought this suit against Craigslist.

Section 3604(c) of the FHA makes it unlawful:

To make, print, or publish, or cause to be made, printed, or published any notice, statement, or advertisement, with respect to the sale or rental of a dwelling that indicates any preference, limitation, or discrimination based on race, color, religion, sex, handicap, familial status, or national origin, or an intention to make any such preference, limitation, or discrimination.

Craigslist Held Immune By Operation Of The Communications Decency Act  

Craigslist moved to dismiss the complaint on the ground that Section 230(c) of the Communications Decency Act ("CDA") immunized it from claims under Section 3604(c) of the FHA.  The Court agreed, and dismissed the action.

Section 230(c)(1) of the CDA provides that:

Treatment of publisher or speaker

No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.

In opposing this motion, plaintiff CLC and supporting amici argued that Section 230(c)(1) does not grant ISPs any immunity at all.  Rather, according to plaintiff, Section 230(c)(1) is simply a necessary prerequisite to obtaining the immunity available to ISPs under Section 230(c)(2) of the statute.  Section 230(c)(2) provides:

Civil liability

No provider or user of an interactive computer service shall be held liable on account of -

(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected; or

(B) any action taken to enable or make available to information content providers or others the technical means to restrict access to material described in paragraph (1).

As interpreted by the plaintiff,  the CDA only immunizes an ISP for acts it voluntarily undertakes to restrict access to objectionable materials, or for its provision of technical means that enable third parties to restrict others from accessing such materials, and then only if the ISP did not 'provide' the objectionable materials in question.  Plaintiff cited dicta found in the Seventh Circuit's decision in Doe v. GTE Corp., 347 F. 3d 655 (7th Cir. 2003) in support of this interpretation.

Craigslist and numerous prominent ISP amici countered by arguing that the CDA grants ISPs immunity for all claims arising out of content originated by third parties, with the exception of claims including those arising under the intellectual property laws specifically enumerated in Section 230(e).  Craigslist found support for its position in the broad immunity granted ISPs in Zeran v. American Online, Inc., 129 F. 3d 327 (4th Cir. 1997) and its progeny.

The Court rejected both arguments.  "The Court concludes that Section 230(c)(1) does not bar "any cause of action," as Zeran holds and as Craigslist contends, but instead is more limited - it bars those causes of action that would require treating an ICS as a publisher of third-party content…  [While Section 230(c)(1) of the CDA]  does not grant immunity per se, cf.  47 U.S.C. § 230(c)(2), it does prohibit treatment as a publisher, which, quite plainly, would bar any cause of action that requires, to establish liability, a finding that an ICS published third-party content.  As the Seventh Circuit already has suggested, "defamation law would be a good example of such liability," GTE, 347 F. 3d at 660; so too, as it turns out, are causes of action under Section 3604(c) [of the FHA].  42 U.S.C. § 3604(c) (rendering it illegal "[t]o make, print, or publish, or cause to be made, printed, or published any [discriminatory] notice, statement, or advertisement…"))."

The Court accordingly held that the CDA immunized Craigslist from the FHA claims at issue, because they were premised on Craigslist's publication of offensive ads authored by third parties.  As such, they sought to treat Craigslist as a publisher of such ads, which was expressly prohibited by the CDA.

The Court noted that it was not determining whether the immunity afforded ISPs under Section 230(c)(2) was predicated on a determination that the ISP had also not authored the content in question.  Resolution of that question was not necessary to the resolution of the case at bar.

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