Reprinted with permission from CNet.com.
The stakes are
enormous. The question is serious. Under what circumstances will the law hold
interactive computer services liable for content posted by others on their
sites?
This issue
surfaced recently in a dispute involving Roommates.com, a Web site where applicants complete
online questionnaires to locate roommates. In a federal lawsuit, the Fair
Housing Councils of San Fernando Valley and San Diego in California complained
that the Web site violated the Fair Housing Act and certain state laws.
A federal
appellate court was called upon to determine whether the site was entitled to immunity under the terms of the Communications Decency Act.
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."
The federal appellate court concluded that Roommates indeed was a content provider and therefore was not entitled to immunity.
The key point is
that interactive computer services are granted legal immunity with respect to
content created by others. Indeed, the grant of immunity applies to a defendant
that is the "provider...of an interactive computer service" and that
is being sued "as the publisher or speaker of any information provided
by" another.
In this particular
case, the parties agreed that the defendant, Roommates, is an interactive
computer service provider. However, the CDA doesn't extend immunity from
liability when a site operates as an information content provider. The statute
defines a content provider as "any person or entity that is responsible,
in whole or in part, for the creation or development of information provided
through the Internet."
Under current law,
Roommates would not be liable if it simply published content provided by third
parties. On the other hand, if it actually was responsible, at least in part,
for the creation or development of the information at issue, Roommates would be
deemed a content provider and thus not afforded immunity under the CDA.
After considering
the arguments, the federal appellate court concluded that Roommates indeed was
a content provider and therefore was not entitled to immunity. The court
reasoned that the company created and developed the questionnaires and potential
answer choices for subscribers. It thus was, to some extent, responsible for
the information provided.
An argument can be
made that this was not the right decision. After all, the members themselves
provided the true content about themselves and their preferences, while
Roommates simply provides a forum.
Furthermore, even
though the site does provide a mechanism and channels for people to potentially
discriminate (which plainly is not a good thing and violates the law), the site
does not dictate the ultimate descriptions and preferences submitted.
Consider also that
Roommates contains approximately 150,000 active listings at a time. Should the
site be deemed potentially liable for discriminatory postings among these
listings and be forced to police those postings on a constant basis?
Congress enacted
the immunity safe harbor contained in the CDA to
protect Internet commerce. The law shields interactive computer service
providers from liability when it comes to third-party content. But where does
one draw the line?
In this case,
Roommates facilitates the process so that people looking for roommates can
provide descriptions and preferences. Sometimes, the content submitted may be
discriminatory in nature.
Has the site gone
so far as to be deemed a content provider, with respect to information supplied
by subscribers? Based upon the facts submitted for its review, the federal
appellate court ruled in the affirmative.
Now it's going to
be up to other courts to grapple with the reach of CDA immunity.
Update: October 25, 2007: In my column above, I asked whether
the site has gone so far as to be deemd a content provider, with respect to
information supplied by subscribers. As I explained, based on the facts
submitted, the initial three-judge appellate panel ruled in the affirmative.
But, as it turns out, that is not the end of the story. Not necessarily.
Indeed, based on a very recent vote of a majority of the judges of the federal
appellate court, this decision has been vacated pending en banc review.
What does that
mean? It means that an eleven-judge panel will be called upon to resolve the issues.
Given that the decision by the three-judge panel has been vacated, it is very
possible that the eleven-judge panel will come to a different conclusion with
respect to CDA immunity in this case. Stay tuned.
Eric J. Sinrod is a partner in the San Francisco
office of Duane Morris. His focus includes information technology and
intellectual-property disputes. To receive his weekly columns, send an e-mail
to ejsinrod@duanemorris.com with "Subscribe" in the subject line.
This column is prepared and published for informational purposes only, and it
should not be construed as legal advice. The views expressed in this column are
those of the author and do not necessarily reflect the views of the author's
law firm or its individual partners.
This article is for general information and does not include full legal analysis of the matters presented. It should not be construed or relied upon as legal advice or legal opinion on any specific facts or circumstances. The description of the results of any specific case or transaction contained herein does not mean or suggest that similar results can or could be obtained in any other matter. Each legal matter should be considered to be unique and subject to varying results. The invitation to contact the authors or attorneys in our firm is not a solicitation to provide professional services and should not be construed as a statement as to any availability to perform legal services in any jurisdiction in which such attorney is not permitted to practice.
Duane Morris LLP, one of the 100 largest law firms in the world, is a full-service firm of more than 600 lawyers. In addition to legal services, Duane Morris has independent affiliates employing approximately 100 professionals engaged in other disciplines. With offices in major markets in the United States and internationally, Duane Morris represents clients across the U.S. and around the world.
