Menu Options Make Website Liable for Content Under CDA
A roommate matching website that gives users pull down menu options with prelisted preferences may be liable for violating the Fair Housing Act, the court of appeals for the Ninth Circuit has ruled.
The court said because Roommates.com, operated by Roommate.com, LLC, provides menu options that include preferences for age, gender, and whether children will live in the household, the website does more than just provide interactive computer services but acts as a publisher of the information instead.
Under the Communications Decency Act (CDA), a provider of interactive computer services is immune from liability for content created by third parties. But the court found roommates.com was providing content as well as computer services because it provides a list of answers to the questionnaire. “Roommate is ‘responsible’ for these questionnaires because it ‘creat[ed] or develop[ed]’ the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication,” the court wrote.
The website was sued by the Fair Housing Counsel of San Fernando Valley and the Fair Housing Council of San Diego. They contended that the website violated the Fair Housing Act by enabling the website members to discriminate against potential roommates. The court did not reach the question of whether the questionnaire did cause discrimination but only addressed the issue of whether the website was immune from the lawsuit under the CDA. Once the members answer the questionnaire, members are sent emails to other members. In addition, members can search profiles of other members for compatible preferences.
The website also allows members to provide more detail under “additional comments.” The majority of the court found the comments in this section to be protected under the CDA because Roommate “certainly does not prompt, encourage or solicit any of the inflammatory information provided by some of its members” under the additional comments section. Comments under this section included “Prefer white male roommates,” “NOT looking for black muslims,” no “smokers, kids or druggies.”
In a concurring in part and dissenting in part opinion, one justice disagreed with the majority’s separating the pull down options from the “additional comments” section. Instead, the judge said for purposes of granting immunity, the entire website should be examined based on the entire member profile, not each part. “There is no justification for slicing and dicing into separate parts the material that Roommate elicits and then channels as an integral part of one package of information to the particular customers to whom it selectively distributes that package,” the judge wrote.
Fair Housing Council of San Fernando Valley et al. v Roommates.com, LLC, Ninth Circuit Nos. 04-56916 and 04-57173, filed May 15, 2007.