CDA Immunity Decision from the Ninth Circuit
UPDATE:
On Thursday, the Ninth Circuit issued its en banc opinion in the case, again written by Judge Kozinski, which affirmed that Roommates.com, LLC enjoys some limited immunity for the content on its website under Section 230 of the CDA.
There's plenty of discussion of the opinion to keep you busy. Following are links to a few:
Technology & Marketing Law Blog
Internet Cases
Decision of the Day
The Volokh Conspiracy
And feel free to click through to see the original posting on the case.
In a rather fractured opinion, the Ninth Circuit denied immunity under the Communications Decency Act, 47 U.S.C. § 230(c), to Roommates.com, LLC, concluding that, at least in regard to some of the website content, Roommates.com was an "information content provider" and therefore may be subject to liability for publishing materials on the website.
The case, Fair Housing Council of San Fernando Valley, et al. v. Roommates.com, LLC, began when two housing councils sued Roommates.com for allegedly violating the Fair Housing Act and various state laws. The District Court found that the housing councils' Fair Housing Act claim was barred by the CDA but the Ninth Circuit disagreed, at least in part, in a lead opinion written by Judge Alex Kozinski.
The Ninth Circuit characterized the question before it as whether Roommates.com was "responsible, in whole or in part, for creating or developing the information" on the website, in which case it would become a "content provider" and would not be entitled to CDA immunity. The Court apparently had no problem concluding that Roommates.com was a content provider in connection with the questionnaires it asked users to complete because it created or developed the forms and answer choices.
The Court then turned to "the more difficult question" of whether Roommates.com was also a content provider subject to liability "for publishing and distributing its members' profiles, which it generates from their answers to the form questionnaires." Given this characterization of the question, it is probably not surprising that the Court concluded that Roommates.com was also a content provider in this context because it "categoriz[ed], channel[ed] and limit[ed] the distribution of user's profiles," thereby providing "an additional layer of information that it is 'responsible' at least 'in part' for creating or developing."
Finally, the Court concluded that Roommates.com was entitled to CDA immunity for publishing the content provided by its members in the "Additional Comments" portion of the profiles because that portion posed only an "open-ended question" that suggested "no particular information that is to be provided by members." In a separate opinion, Judge Reinhardt dissented from this portion of Judge Kozinski's opinion, arguing that Roommates.com was not entitled to CDA immunity for publishing this content. Judge Reinhardt expressed a fairly unfavorable opinion of the "Additional Comments" portion of the website, stating that from "a subjective perspective, Roommate's site is designed so that users will express illicit preferences in their 'Additional Comments.'"
Judge Ikuta also weighed in with a separate opinion expressing disagreement with one portion of the Court's lead opinion specifically as it related to binding Ninth Circuit precedent which she stated resulted in "robust immunity under section 230(c)."
With three opinions, the case offers a lot to mull over. For more commentary on and analysis of the Ninth Circuit's opinion, see Decision of the Day, The Volokh Conspiracy and the Technology & Marketing Law Blog.
On Thursday, the Ninth Circuit issued its en banc opinion in the case, again written by Judge Kozinski, which affirmed that Roommates.com, LLC enjoys some limited immunity for the content on its website under Section 230 of the CDA.
There's plenty of discussion of the opinion to keep you busy. Following are links to a few:
Technology & Marketing Law Blog
Internet Cases
Decision of the Day
The Volokh Conspiracy
And feel free to click through to see the original posting on the case.
In a rather fractured opinion, the Ninth Circuit denied immunity under the Communications Decency Act, 47 U.S.C. § 230(c), to Roommates.com, LLC, concluding that, at least in regard to some of the website content, Roommates.com was an "information content provider" and therefore may be subject to liability for publishing materials on the website.
The case, Fair Housing Council of San Fernando Valley, et al. v. Roommates.com, LLC, began when two housing councils sued Roommates.com for allegedly violating the Fair Housing Act and various state laws. The District Court found that the housing councils' Fair Housing Act claim was barred by the CDA but the Ninth Circuit disagreed, at least in part, in a lead opinion written by Judge Alex Kozinski.
The Ninth Circuit characterized the question before it as whether Roommates.com was "responsible, in whole or in part, for creating or developing the information" on the website, in which case it would become a "content provider" and would not be entitled to CDA immunity. The Court apparently had no problem concluding that Roommates.com was a content provider in connection with the questionnaires it asked users to complete because it created or developed the forms and answer choices.
The Court then turned to "the more difficult question" of whether Roommates.com was also a content provider subject to liability "for publishing and distributing its members' profiles, which it generates from their answers to the form questionnaires." Given this characterization of the question, it is probably not surprising that the Court concluded that Roommates.com was also a content provider in this context because it "categoriz[ed], channel[ed] and limit[ed] the distribution of user's profiles," thereby providing "an additional layer of information that it is 'responsible' at least 'in part' for creating or developing."
Finally, the Court concluded that Roommates.com was entitled to CDA immunity for publishing the content provided by its members in the "Additional Comments" portion of the profiles because that portion posed only an "open-ended question" that suggested "no particular information that is to be provided by members." In a separate opinion, Judge Reinhardt dissented from this portion of Judge Kozinski's opinion, arguing that Roommates.com was not entitled to CDA immunity for publishing this content. Judge Reinhardt expressed a fairly unfavorable opinion of the "Additional Comments" portion of the website, stating that from "a subjective perspective, Roommate's site is designed so that users will express illicit preferences in their 'Additional Comments.'"
Judge Ikuta also weighed in with a separate opinion expressing disagreement with one portion of the Court's lead opinion specifically as it related to binding Ninth Circuit precedent which she stated resulted in "robust immunity under section 230(c)."
With three opinions, the case offers a lot to mull over. For more commentary on and analysis of the Ninth Circuit's opinion, see Decision of the Day, The Volokh Conspiracy and the Technology & Marketing Law Blog.
