Website Can Be Liable For User Posts – Federal Appellate Court Rules

The U.S. Court of Appeals for the Ninth Circuit has ruled (Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, 04-56916) that a website can be held liable for postings of its users that violate federal law.

Roommates.com allowed users to post preferences for housing arrangements that included race, gender, religion, and sexual orientation. These postings allegedly violated the Fair Housing Act.

To become members of Roommate, users respond to a
series of online questionnaires by choosing from answers in
drop-down and select-a-box menus. Users must disclose
information about themselves and their roommate preferences
based on such characteristics as age, sex and whether children
will live in the household. They can then provide “Additional
Comments” through an open-ended essay prompt.

Here’s the key quote from the court’s opinion:

While Roommate provides a useful service, its 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.
47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at
1031. Whether these actions ultimately violate the FHA is a
question the district court must decide in the first instance.

Note the part that I’ve marked in bold.

The case has been remanded by the appellate court for the federal district court to determine whether or not the Act had in fact been violated.

This sets a dangerous precedent.
For more information, check out these stories here, here and here.

For a copy of the court’s opinion in an Adobe Acrobat PDF file, click here.

Author Mike Young, Esq.

Mike Young has been practicing business and technology law since 1994 and is an angel investor in startups. He's been an entrepreneur since 1988. To get legal help from Attorney Young, click here now or call 214-546-4247 to schedule a phone consultation.

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