When Are ISPs Legally Responsible for Content Posted by Others?

The stakes are enormous. The question is serious. Under what circumstances are interactive computer services liable for content posted by others on their sites?

This issue was addressed recently in the case Fair Housing Council of San Fernando Valley v. Roommates.com, LLC. In that case, a federal appellate court was called upon to determine the scope of immunity potentially available to an online roommate matching service under the Communications Decency Act (CDA).

The Web site at issue is www.roommates.com. This site is designed to assist people in locating potential roommates by virtue of descriptions of themselves and what they are looking for in roommates. The descriptions and preferences come from completed online questionnaires. Information relating to such matters as gender, age and the presence of children is provided.

A federal lawsuit was filed by the Fair Housing Councils of San Fernando Valley and San Diego (Councils) against Roommates.com, LLC. The Councils alleged that the www.roommates.com site's practice of allowing users to filter out potential roommates according to user-selected criteria violated the Fair Housing Act (FHA) and certain state laws by discriminating against protected categories of renters.

The trial court and then the appellate court, before even considering whether the complaint had merit under the FHA and state laws, first had to determine whether the site was subject to immunity from liability under the CDA.

The CDA, at 47 U.S.C. 230(c), specifically provides that "[n]o provider . . . of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The key point is that interactive computer services, as written into the law by Congress, are granted legal immunity with respect to content created by others. Indeed, Section 230(c) specifically states that the 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 and did not dispute that the defendant, Roommates.com, LLC, is an interactive computer service provider. Accordingly, there was no dispute that there was immunity as far as the simple publication of information provided by people who had submitted information to the site.

However, the CDA, at 47 U.S.C. 230(f)(3), indicates that there is no immunity from liability when a site operates as an information content provider. This section of the CDA 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 the foregoing regime, as recognized by the federal appellate court, if Roommates.com, LLC only published in passive fashion content provided by others, it would be immune from liability under the CDA. On the other hand, if it actually was responsible at least in part for the creation or development of the information at issue, it would be deemed a content provider and thus not afforded immunity under the CDA.

The federal appellate court, after considering the various arguments going back and forth, concluded that Roommates.com, LLC is a content provider and therefore is not entitled to immunity available by way of the CDA.

How did the appellate court come to this conclusion? The court reasoned that because Roommates.com, LLC created and developed the questionnaires and potential answer choices that were completed by the members who subscribed to the site, it was responsible, to some extent, for the information provided.

Moreover, the court argued that by filtering search results and channeling users to certain profiles based on user preferences, the www.roommates.com site had provided an additional layer of "meta-information" that it was responsible for creating and maintaining. This extra layer of information rendered www.roommates.com a content provider, and destroyed its immunity under Section 230.

Is this the correct result? An argument can be made that it is not - after all, it is the members who provided the true content about themselves and their preferences, and www.roommates.com simply created a forum for them to do that.

Furthermore, even though the site does provide a mechanism and channels for people to discriminate potentially (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 www.roommates.com contains approximately 150,000 active listings at a time. Should the court potentially hold the site liable for discriminatory postings among these listings, forcing www.roommates.com to police those postings on a constant basis?

Congress enacted the immunity safe harbor contained in the CDA so as not to stifle Internet commerce by making interactive computer service providers immune from liability when it comes to the content of others. It is one thing to hold a service provider liable when it truly helps create and develop offending content that is subject to a legal complaint.

But where does one draw the line? Here, www.roommates.com does facilitate a process so that people looking for roommates can provide descriptions and preferences, and the content submitted can 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 on the facts submitted, the initial three-judge appellate panel ruled in the affirmative.

Is that the end of the story? Not necessarily. Indeed, based on a 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 Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His Web site is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the Subject line.

This column is prepared and published for informational purposes only and 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.