Roommates.com Decision

In May 2007, the Ninth Circuit handed down a decision in Fair Housing Council of San Fernando Valley v. Roommates.com LLC , 489 F.3d 921 (9th Cir. 2007) (“Roommates.com”), that creates liability for interactive computer services providers arising from third-party content. Until recently, courts had interpreted the Communications Decency Act (“CDA”), 47 U.S.C. § 230, as broadly immunizing computer services providers from such liability, so as to promote the free exchange of ideas over the Internet and encourage voluntary monitoring for offensive, obscene, discriminatory, or otherwise unlawful material. See 489 F.3d at 925. Roommates.com , however, emphasizes that online service providers open themselves to liability as publishers of user-generated content to the extent they are involved in shaping such unlawful content. Id.; see § 230(c)(1).

In Roommates.com, the Ninth Circuit held an online roommate-matching Web site liable under the CDA as an “information content provider” because it was partially responsible for the creation or development of unlawful content in user-submitted profiles. 489 F.3d at 925-26; see 47 U.S.C. § 230(f)(3). In particular, Plaintiffs alleged that Roommate.com violated fair housing laws by publishing and encouraging users to post discriminatory roommate preferences. By requiring all potential members, as a precondition to completing member registration, to respond to a series of predetermined drop-down menu questions concerning users’ age, gender, sexual orientation, occupation, and familial status, Roommate.com was responsible in part for creating and developing the unlawful user-generated content on its site. 489 F.3d at 926.

According to the court, Roommates.com was distinguishable from Califano v. Metrosplash.com, Inc. , 339 F.3d 1119 (9th Cir. 2003), in which the Ninth Circuit held that an online dating service was not liable for a third party’s submission of a false profile of an actress in response to the Web site’s online questionnaire. Id. at 927-28. In Califano , the dating service Web site solicited information about the individual posting a profile, not about unwitting third parties. Id. at 928. Moreover, the user posted the actress’ information despite Web site policies that prohibited such postings. Id.

Roommate.com, by contrast, solicited from users the very information published in the profiles on its site. Furthermore, the Web site did more than simply passively publish information provided by others. Id. It instead categorized, channeled, and limited distribution of members’ profiles to only those members with compatible roommate preferences based on responses to answers solicited in the drop-down menu questions. Id.

Providing Internet service providers further guidance, Roommates.com also held that the Web site was not liable for publishing content provided by members in the open-ended “additional comments” portion of the member profiles. Id. at 929. Unlike with the drop-down menu questions, the Web site operator did not prompt, encourage, or solicit any particular information in the “additional comments” section, nor did it use this information to limit or channel access to its roommate listings. Id. Roommate.com therefore was not responsible for such third-party content, and was immune from liability for publishing those responses.

After Roommates.com, What Third-Party Content Can Computer Services Providers Publish Without Incurring Liability?

Roommates.com reiterates that CDA immunity will protect computer services providers from liability for making minor edits to user-submitted content if those edits do not materially affect the content’s meaning. Id. at 926 n.6. For example, in Roommates.com , the Web site operator did not lose CDA immunity merely by changing the wording of members’ selections on the required questionnaire of “I will not live with children” to the ultimate published response of “no children please.” Id.

The Ninth Circuit also suggests that a Web site operator likely will be an information content provider, i.e., at least partly responsible for the creation or development of unlawful content in a user-submitted profile, if it encourages site visitors to provide damaging material about others. For example, the court in Roommates.com suggests that a hypothetical Web site named “www.harrassthem.com” would not enjoy CDA immunity because it actively encourages and solicits unlawful communications of third parties. Id. at 928.

Nevertheless, the factual distinctions between Roommates.com and Califano may leave some computer services providers uncomfortable with the scope of CDA immunity under Section 203. The courts have yet to clarify whether the safest course for publishers seeking to avoid liability from third-party content is to remove offensive content from user-generated posts, remove the posts in their entirety, provide Web site links through which users can easily and quickly report offensive content, or some other measure.

For more information, please contact:

Anthony V. Lupo
202-857-6353
lupo.anthony@arentfox.com

Loni J. Sherwin, Law Clerk
202-775-8581
sherwin.loni@arentfox.com