Ninth Circuit Denies Full Immunity for Web Service

Ninth Circuit Denies Full Immunity for Web Service in Roommates.com Case
April 10, 2008

On April 3, 2008, the Ninth Circuit Court of Appeals issued a ruling in Fair Housing Council of San Fernando Valley, et al., v. Roommates.com, LLC that merits consideration by online services generally. Roommates.com (Roommates) was sued by the housing council for violating fair housing laws, but the company had successfully argued at the district court level that, as an interactive computer service, it should be immune from liability for the content posted by its users under Section 230 of the Communications Decency Act (CDA). The Ninth Circuit, en banc, held that the website was not entitled to this immunity because it "materially contributed" to the "development" of unlawful content. Most notably, as a condition to registering for the site, users were required to create a profile by selecting from pre-populated answers to various unlawful, discriminatory questions about their housing preferences.

Under Section 230(c), "[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 statute makes clear, however, that immunity does not apply if the service provider also participated as an "information content provider," that is, a party "responsible, in whole or in part, for the creation or development" of the offending content.