Seventh Circuit Upholds CDA Immunity For Craigslist-But What Is The Impact, If Any, On Roommate.com?On March 14, 2007, the Seventh Circuit issued an important decision regarding the scope of the safe haven 1. Designated area(s) to which noncombatants of the United States Government's responsibility and commercial vehicles and materiel may be evacuated during a domestic or other valid emergency. 2. under the Communications Decency Act See CDA. (legal) Communications Decency Act - (CDA) An amendment to the U.S. 1996 Telecommunications Bill that went into effect on 08 February 1996, outraging thousands of Internet users who turned their web pages black in protest. ("CDA (1) (Compact Disc Audio) The compact disc file extension that is seen on the computer in Explorer or some other file manager. CDA files are actually pointers to the locations of the individual tracks on the CD medium. See CD-DA. ") for internet service providers Internet service provider (ISP) Company that provides Internet connections and services to individuals and organizations. For a monthly fee, ISPs provide computer users with a connection to their site (see data transmission), as well as a log-in name and password. against liability for information created and provided by third parties. In Chicago Lawyers' Committee for Civil Rights Under the Law, Inc. v. Craigslist, Inc., the Court unanimously held that Craigslist was entitled to CDA immunity for discriminatory third-party housing notices that were posted on its online classified website because Craigslist was not a "publisher or speaker" of the postings, nor did it "cause" the postings to be made. This decision represents an important win for internet service providers who provide a forum for third-party online postings. Moreover, it could influence the Ninth Circuit as it considers the pending, much-publicized case of Fair Housing Council of San Fernando Valley San Fernando Valley Valley, southern California, U.S. Northwest of central Los Angeles, the valley is bounded by the San Gabriel, Santa Susana, and Santa Monica mountains and the Simi Hills. v. Roommate.com - a case that could significantly impact the extent to which online service providers can claim immunity for information created and provided by web site users. Background Facts and Claims Craigslist operates an online classified website that allows individuals to post and obtain notices for a variety of goods and services In economics, economic output is divided into physical goods and intangible services. Consumption of goods and services is assumed to produce utility (unless the "good" is a "bad"). It is often used when referring to a Goods and Services Tax. , including housing. Users of the site had allegedly posted housing advertisements and notices that included a preference with respect to a protected class Protected class is a term used in United States anti-discrimination law. The term describes groups of people who are protected from discrimination and harassment. The following characteristics are considered "Protected Classes" and persons cannot be discriminated against based on , including race, religion, sex or family status. The Chicago Lawyers' Committee for Civil Rights Under the Law, Inc. ("CLC (The Computer Language Company Inc.) The publisher of this Encyclopedia. See About this product. ") filed suit in federal district court claiming Craigslist violated the Fair Housing Act by featuring such thirdparty postings on its website. Advertisements for housing that include such a preference are prohibited under Section 804(c) of the Fair Housing Act. Section 230 of the CDA and the Fair Housing Act Section 804(c) of the Fair Housing Act makes it illegal "[t]o 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...." The Court noted that this statute was regularly enforced against newspapers and other publishers, but not against common carriers such as telephone services or courier services such as FedEx or UPS because the latter do not make or publish the information that passes through them. Section 230(c)(1) of the CDA states 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." Thus, to the extent an online service provider passively publishes information provided by others, immunity will protect that provider from liability for the content others create. However, under Section 230(f)(3), an entity is an "information content provider" if it "is responsible, in whole or in part, for the creation or development of [the] information provided." Thus, to enjoy CDA immunity, a web site owner must establish that its activities in providing a forum for user postings did not rise to the level of creating or developing the information posted. The Seventh Circuit's Opinion The Court followed the district court's reasoning that the plain language of Section 230(c)(1) foreclosed the CLC's claims under the Fair Housing Act. Under Section 230(c)(1), "an online information system must not 'be treated as the publisher or speaker of any information provided by' someone else." Because the discriminatory housing postings were provided by its users, Craigslist, an online information system, could not be treated as the publisher of those postings and could not be sued by the CLC on account of the postings: "given s. 230(c)(1) [one] cannot sue the messenger just because the message reveals a third party's plan to engage in unlawful discrimination." In reaching its holding, the Court noted the burdens that online service providers such as Craigslist would face if required to actively filter content provided by its users. The hiring of personnel to filter the content "would be expensive and may well be futile." Filtering could result in delays, making the services provided less useful, and errors would likely be frequent - "[a]utomated filters and human reviewers may be equally poor at sifting good from bad postings unless the discrimination is blatant; both false positives and false negatives are inevitable." The Court also rejected several attempts by the CLC to narrow the scope of Section 230 immunity. First, the Court rejected the notion that Section 230(c)(1) immunity was limited to online service providers who undertake some form of filtering or screening. While Section 230(c)(2) protects online service providers for activities taken in censoring censoring in epidemiology, a loss of information from a study, whether by subjects dropping out of the study or because of infrequent measurement. user content, Section 230(c)(1) is a separate subsection dealing with a different topic - that being the "liability of speakers or publishers" - which did not pertain to pertain to verb relate to, concern, refer to, regard, be part of, belong to, apply to, bear on, befit, be relevant to, be appropriate to, appertain to , or require, acts of censorship for it to apply. Next, the Court rejected the CLC's argument that Congress did not intend Section 230 to immunize im·mu·nize v. 1. To render immune. 2. To produce immunity in, as by inoculation. im an online service provider from liability under the Fair Housing Act. Because Section 230(c)(1) is a general statute, it applies to all forms of liability, regardless of whether such liability was specifically identified. Congress did not expressly state that Fair Housing Act liability was to be excepted from the general immunity general immunity n. Immunity that protects the body as a whole. provided by Section 230, thus no such exception exists. Finally, the Court rejected the CLC's argument that Craigslist "caused" the discriminatory housing postings because no one could post a discriminatory posting if Craigslist did not provide a forum. The Court noted that under this definition of cause, "one might as well say that people who save money 'cause' bank robbery The examples and perspective in this article or section may not represent a worldwide view of the subject. Please [ improve this article] or discuss the issue on the talk page. Bank robbery is the crime of robbing a bank. , because if there were no banks there could be no bank robberies." Because "nothing in the service Craigslist offered induced anyone to post any particular listing or express a preference for discrimination," Craigslist did not "cause" the postings as required for Fair Housing Act liability. Comparing and Contrasting Craigslist with Roommate.com This decision joins the majority of other cases in treating immunity under Section 230(c) of the CDA as "quite robust." However, it is unclear what impact, if any, it will have on the Ninth Circuit as it ponders the potentially pivotal and factually similar case of Fair Housing Counsel of San Fernando Valley v. Roommate. com. (See discussion of Roommate.com at http://www.fenwick.com/docstore/Publications/Litigation/Litigation_Alert_05-17-07.pdf Roommate.com, an online roommate matching website, would ask a series of questions regarding age, gender and sexual orientation sexual orientation n. The direction of one's sexual interest toward members of the same, opposite, or both sexes, especially a direction seen to be dictated by physiologic rather than sociologic forces. that its users had to answer by selecting from drop-down menus, and then would create user profiles and provide searching and matching functionality based on users' answers. In addition, Roommate.com offered an "Additional Comments" field in which users could write whatever they wished, and as in the case of Craigslist, many users allegedly used this space to express roommate preferences related to race and other protected classifications. Like Craigslist, Roommate.com was haled into federal court on the claim that its web site and related roommate matching services violated the Fair Housing Act. In a fractured decision, the Ninth Circuit panel initially held that Roommate.com was entitled to CDA immunity for the Additional Comments posted by users because Roommate did not suggest any particular information for this area, hence was not responsible for user-generated content The production of content by the general public rather than by paid professionals and experts in the field. Mostly available on the Web via blogs and wikis, user-generated content refers to material such as the daily news, encyclopedias and other references, movie and product reviews as . The panel found, however, that Roommate was not entitled to CDA immunity for the information provided in response to its other questions because Roommate. com "created or developed" answer choices for their members to select from and "categorized cat·e·go·rize tr.v. cat·e·go·rized, cat·e·go·riz·ing, cat·e·go·riz·es To put into a category or categories; classify. cat , channeled and limited" the distribution of member profiles based on the information provided. To this extent, Roommate.com was an "information content provider" who was "responsible" for the creation of the information, and was therefore not entitled to immunity under Section 230(c)(1). The final outcome of Roommate.com is unknown - the Ninth Circuit granted rehearing rehearing n. conducting a hearing again based on the motion of one of the parties to a lawsuit, petition or criminal prosecution, usually by the court or agency which originally heard the matter. en banc [Latin, French. In the bench.] Full bench. Refers to a session where the entire membership of the court will participate in the decision rather than the regular quorum. In other countries, it is common for a court to have more members than are , and numerous heavy-hitters in the news and internet communities (including CNN CNN or Cable News Network Subsidiary company of Turner Broadcasting Systems. It was created by Ted Turner in 1980 to present 24-hour live news broadcasts, using satellites to transmit reports from news bureaus around the world. , NBC NBC in full National Broadcasting Co. Major U.S. commercial broadcasting company. It was formed in 1926 by RCA Corp., General Electric Co. (GE), and Westinghouse and was the first U.S. company to operate a broadcast network. , CBS (Cell Broadcast Service) See cell broadcast. , Time, the L.A. Times, Amazon, AOL (A division of Time Warner, Inc., New York, NY, www.aol.com) The world's largest online information service with access to the Internet, e-mail, chat rooms and a variety of databases and services. , Google, Ebay, Facebook, Yahoo and the NY Times Co.) joined in submitting amicus briefs urging the Ninth Circuit to find in favor of full immunity for Roommate.com. Oral argument was heard on December 12, 2007, and no decision has been issued. The Ninth Circuit may view the Seventh Circuit's Craigslist ruling as not only corroboration of the robust scope of CDA immunity in general, but more specifically as support for the proposition that Section 230 of the CDA protects online housing matching services from liability for statements and actions by web site users that may run afoul of a·foul of prep. 1. In or into collision, entanglement, or conflict with. 2. Up against; in trouble with: ran afoul of the law. the Fair Housing Act. On the other hand, there is certainly room for the Ninth Circuit to distinguish Craigslist. The pivotal facts in Roommate.com that informed the Ninth's Circuit's analysis - that Roommate.com's member profiles were created off of pre-set answer and menu choices determined by Roommate.com and were then categorized, channeled and filtered based on those answers - did not exist in Craigslist. While Craigslist presented questions, the answers were entirely created and determined by its users (much like the Roommate.com's "Additional Comments" field). Further, Craigslist did not limit access to the postings based on a user's particular answers, but allowed all users to access all postings. The Roommate case raises the harder questions of whether an online service provider becomes responsible for content when it provides pre-set answer choices, or when it sorts and categorizes based on users' input information - issues not addressed by the Seventh Circuit. If Roommate.com is not amended on rehearing, it may be viewed as precedent for finding liability against other online service providers that structure usergenerated information through drop-down menus or other pre-set choices. However, whatever the result of Roommate.com's en banc hearing, Craigslist does represent an important win for online service providers in solidifying Section 230 immunity in suits regarding user-provided content. The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances. Mr Laurence Pulgram Fenwick & West LLP LLP - Lower Layer Protocol Silicon Valley Center 801 California Street Mountain View California CA 94041 UNITED STATES United States, officially United States of America, republic (2005 est. pop. 295,734,000), 3,539,227 sq mi (9,166,598 sq km), North America. The United States is the world's third largest country in population and the fourth largest country in area. Tel: 6509888500 Fax: 6509385200 E-mail: LFraher@fenwick.com URL URL in full Uniform Resource Locator Address of a resource on the Internet. The resource can be any type of file stored on a server, such as a Web page, a text file, a graphics file, or an application program. : www.fenwick.com Click Here for related articles (c) Mondaq Ltd, 2008 - Tel. +44 (0)20 8544 8300 - http://www.mondaq.com |
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