Designer Skin LLC v. S & L Vitamins, Inc., et al.
Fair Housing Council of San Fernando Valley, et al. v. Roommates.com LLC
489 F.3d 921, CV-03-09386-PA (9th Cir., May 15, 2007) aff'd en banc 2008 WL 879293 (9th Cir., April 3, 2008).
CDA Does Not Immunize Roommates.com From Selective Distribution Of User Profiles
A divided three judge panel of the Ninth Circuit limited the immunity afforded by the Communications Decency Act (“CDA”), 47 U.S.C. section 230, for website operators involved in the publication and distribution of the responses to questionnaires completed by third parties concerning their roommate preferences.
The Panel unanimously held that the CDA did not immunize defendant Roommates.com from potential liability for drafting and posting questionnaires that sought information from those using the site about their roommate preferences. These questionnaires, among other things, sought information about the preferred sexual orientation of the prospective roommate, and were used to create member profiles. The Panel held that the CDA did not immunize Roommates.com from potential liability under the Fair Housing Act (“FHA”) for requiring members to answer questions that potentially enabled other members to discriminate for or against them.
By a vote of 2 to 1, the Panel further held that the CDA did not immunize Roommates.com from potential liability under the FHA for publishing and distributing member profiles created in response to Roommates.com’s questionnaires. Roommates.com used the content of a user’s responses to its questionnaires to determine who among its members should receive notice that they were seeking a roommate, and/or be permitted to view that user’s profile. For example, an individual with children was not shown a listing for an apartment occupied by an individual seeking a roommate without children. The court held that by categorizing, channeling and limiting the distribution of user profiles, Roommates.com was sufficiently involved in the creation of the distributed information to lose the immunity afforded by the CDA to interactive service providers who make available content drawn by third parties. As a result, the Ninth Circuit allowed plaintiffs to proceed with claims that by such conduct, Roommates.com violated the FHA.
Finally, by a vote of 2 to 1, the Court held that the CDA did immunize Roommates.com from potential FHA liability arising out of its publication of users’ responses to Roommates.com’s requests for “Additional comments” concerning their roommate preferences. In this section of its questionnaire, Roommates.com “strongly recommend[ed the user] tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.” This question produced the most provocative – and potentially discriminatory - responses found in user profiles. The court held that the responses to this question constituted content created by third parties within the meaning of the CDA. As a result, held the Court, by application of the CDA, Roommates.com could not be held liable for publishing these responses on its website.
Roommates.com operates a website that assists individuals in locating roommates. To use this service, individuals must create a user profile by responding to various questions posed by Roommates.com. For most of these questions, the user must select his answer from those made available by Roommates.com. Among other things, users must state their age, sex and sexual orientation, and advise whether they live with or without children.
Users are also provided an opportunity to supply additional information about themselves in response to a query for “Additional comments.” In this section of its questionnaires, Roommates.com “strongly recommend[ed the user] tak[e] a moment to personalize your profile by writing a paragraph or two describing yourself and what you are looking for in a roommate.” Unlike the balance of its questionnaires, users here are permitted to draft their own responses, and submit any information about themselves they chose to supply.
Roommates.com assembles user profiles from the responses to its questionnaires, and distributes emails to users listing compatible members based on their stated preferences. Thus, an individual seeking a roommate without children will not receive listings from individuals with children, and vice-versa. Similarly, Roommates.com uses the information contained in the user’s profile to restrict those who can view it again to users with compatible preferences.
While not entirely clear from the court’s decision, it appears that Roommates.com does not distribute the ‘Additional Comments’ essays prepared by its users via its email system. This information, instead, is only made available to paying subscribers.
Claiming Roommates.com’s conduct violates the Fair Housing Act and various state statutes, the Fair Housing Councils of San Fernando Valley and San Diego commenced this suit. Roommates.com moved by motion for summary judgment to dismiss, arguing it was immunized from liability by application of the Communications Decency Act. The District Court held that the CDA immunized Roommates.com from the FHA claims. On appeal, the Ninth Circuit reversed in part, holding that because of its involvement in the creation of the information in question, the CDA did not provide Roommates.com with immunity from all of the FHA claims at issue.
CDA Does Not Immunize Roommates.com From Potential FHA Liability Arising Out Of Questionnaires It Requires Users To Complete
The Ninth Circuit unanimously held that the CDA did not immunize Roommates.com from potential liability under the FHA for the questions posed in its ‘profile’ questionnaires, which individuals were required to answer to utilize the service. Plaintiffs claimed that by requiring members to answer questions that potentially enabled other members to discriminate for or against them, Roommates.com had violated the FHA.
Section 230 of the CDA provides that “no provider … of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” According to the Ninth Circuit, “the touchstone of section 230(c ) is that providers of interactive computer services are immune from liability for content created by third parties.”
Because Roommates.com drafted these questionnaires, they do not constitute “content created by third parties,” and accordingly the CDA does not immunize Roommates.com from potential FHA liability arising therefrom. The court accordingly denied this branch of defendant’s motion for summary judgment.
CDA Does Not Immunize Roommates.com From Potential FHA Liability Arising Out Of Selective Publication And Distribution Of User Profiles
By a vote of 2 to 1, the Ninth Circuit also held that the CDA did not immunize Roommates.com from potential liability arising from its determination to restrict the information available to those seeking a roommate to individuals with compatible preferences.
In reaching this result, the court distinguished this case from Carafano v. Metrosplash.com, 339 F.3d 1119 (9th Cir. 2003). There, the court held that the operator of a website was immunized by the CDA from liability for posting a false user profile authored by an anonymous individual. This profile falsely stated that plaintiff, an actress, was looking for a “one night stand” with a controlling man. Unfortunately, it provided accurate contact information, resulting in her receipt of unwanted contacts. The court distinguished Carafano because the “prankster in Carafano provided information that was not solicited by the operator of the website” whereas in the case at bar, users were providing answers from among those drafted by Roommates.com, in response to questions Roommates.com posed, and required them to answer to obtain access to its site.
Finally, by a vote of 2 to 1, the Panel held Roommates.com immune from claims arising out of its publication of user responses to its request for “Additional Comments” concerning their roommate preferences. The Court concluded that Roommates was not involved in the creation of this content, and the CDA accordingly protected it from liability arising out of its publication of this information on its website. Said the Court:
Gripe Sites Operators Who Publish The Complaints Of Others May Face Potential Exposure
Perhaps the most interesting portion of the court’s decision is its suggestion that the CDA may not immunize those who operate complaint or gripe sites that collect and publish the complaints of others, from potential liability therefore. Said the Court: