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Federal Judiciary: Decision of the Day
En Banc Ninth Revisits Online Immunity Case
By Robert Loblaw
Fair Housing Council v. Roommates.com, 04-56916 (9th Cir., April 3, 2008)
A year ago, a panel of the Ninth Circuit made waves when it issued a fractured decision that limited online content providers? immunity under § 230 of the Communications Decency Act. At issue was whether Roommates.com, an online roommate matching service, could be liable for violating the Fair Housing Act based on the illegal preferences of its users.
From my earlier coverage:
Users of Roommates.com fill out a form that elicits various roommate preferences, including whether they prefer to lives with males, females, families, or roommates of particular sexual orientations. The problem is that many of these preferences are illegal. Indeed, a newspaper would likely be liable for running an ad from a customer looking for a female roommate with no kids. But Roommates.com believed that § 230 shielded it from liability for posting the same ad, and the district court agreed, granting the defendant summary judgment.
The panel disagreed and concluded that Roommates.com could be liable for violating the FHA. Roommates.com requested en banc rehearing, hoping that the rest of the Ninth Circuit would read § 230 more broadly. Indeed, in a similar case, the Seventh Circuit recently held that § 230 shielded Craigslist from liable for discriminatory postings. (My coverage here.)
But one difference between Craigslist and Roommates.com is that the latter website uses a drop-down menu that allows users to express discriminatory preferences. That proves to be a key distinction for the en banc Ninth Circuit, which votes 8-3 to send the case against Roommates.com back to district court for a trial.
Judge Kozinski wrote the panel decision, and he also writes on behalf of the en banc majority. But his en banc opinion is a lot narrower than his panel opinion, which hypothesized about the potential liability of websites that solicit salacious?and sometimes defamatory? information about private individuals. That?s good news for gossip bloggers and websites like dontdatehim.com. But it’s all bad news for websites that try to “personalize” their online experience by encouraging users to categorize themselves by race, gender, age, religion, and other factors that could turn out to be discriminatory in other contexts.
Judge McKeown?s dissent argues that the decision betrays Congress?s intent to give the online publishers space to grow and thrive without fear of lawsuits. She believes that under the majority?s analysis, the exception to liability will soon swallow the rule, given the prevalence of dropdown menus. Judges Rymer and Bea make up the rest of this unlikely trio of dissenters.
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