Section 230 of the Communications Decency Act (CDA) has been
taken to mean that a content publisher cannot be held responsible
for the content provided by someone else to an un-moderated
website. Even in the face of evidence that comments posted by users
are defamatory, the CDA has shielded publishers from liability for
failing to remove the comments.
The law says: "no provider or user of an interactive computer
service shall be treated as the publisher or speaker of any
information provided by another information content provider".
But accommodation matching service Roommates.com and a sex
partner finding website have both lost parts of court cases in
recent weeks which experts say could change the interpretation of
that law.
A personal profile and nude photograph appeared on
AdultFriendFinder, a sex and swingers' website run by the company
FriendFinder.
A woman sued the company saying that the profile appeared to be
of her, though she had not put it there. A New Hampshire federal
court sided largely with FriendFinder, agreeing that the CDA
provided it with immunity.
"This immunity, as construed by the First Circuit, plainly
extends to a number of the acts and omissions alleged in the
plaintiff’s complaint," said Judge Joseph LaPlante in his
ruling.
Judge LaPlante did say, though, that the company could not claim
CDA exemption in relation to one of the rights the unnamed woman
claimed was violated.
She had claimed her rights of publicity, essentially the right
to control your own image and likeness, were violated by the
publication of the profile.
The court found that the right of publicity is an intellectual
property right. The CDA says that publishers cannot claim immunity
in relation to intellectual property rights, and so LaPlante said
that the woman could hold FriendFinder responsible for a breach of
that right, if she can prove a breach, and that the CDA does not
protect FriendFinder.
A second case involved house sharing site Roommates.com. It
helps renters to find places to live or people to live with based
on shared interests, needs or preferences.
It was sued by the Fair Housing Council of San Fernando Valley,
which alleged that the site broke the Fair Housing Act by allowing
users to be illegally discriminatory in their accommodation
matching.
Roommates.com had said that it was not liable for the illegal
behaviour of users of its service, and that the CDA granted it
immunity.
The Court of Appeals for the Ninth Circuit upheld a previous
ruling, though, saying that the Act did not grant Roommates.com
immunity from liability for publishing questionnaires which asked
for information which could be used by others to discriminate
against them in the offering of housing.
The Fair Housing Council argued that the discrimination
resulting from the use of the questionnaires was illegal under the
Fair Housing Act.
According to the court ruling, Roommates.com "requires each
subscriber to disclose his sex, sexual orientation and whether he
would bring children to a household. Each subscriber must also
describe his preferences in roommates with respect to the same
three criteria: sex, sexual orientation and whether they will bring
children to the household".
"We note that asking questions certainly can violate the Fair
Housing Act and analogous laws in the physical world," said the
ruling. "For example, a real estate broker may not inquire as to
the race of a prospective buyer, and an employer may not inquire as
to the religion of a prospective employee. If such questions are
unlawful when posed face-to-face or by telephone, they don’t
magically become lawful when asked electronically online. The
Communications Decency Act was not meant to create a lawless
noman’s-land on the Internet."
"By requiring subscribers to provide the information as a
condition of accessing its service, and by providing a limited set
of pre-populated answers, Roommate becomes much more than a passive
transmitter of information provided by others; it becomes the
developer, at least in part, of that information," said the
judges. "And section 230 provides immunity only if the interactive
computer service does not “creat[e] or develop[ ]” the information
“in whole or in part"."
The Appeals Court said that the immunity contained in the CDA
was only available to publishers who took no direct involvement in
illegal activity published online.
"A website operator who edits user-created content – such as by
correcting spelling, removing obscenity or trimming for length –
retains his immunity for any illegality in the user-created
content, provided that the edits are unrelated to the illegality,"
said the Court. "However, a website operator who edits in a manner
that contributes to the alleged illegality … is directly involved
in the alleged illegality and thus not immune."
"Here, Roommate’s connection to the discriminatory filtering
process is direct and palpable: Roommate designed its search and
email systems to limit the listings available to subscribers based
on sex, sexual orientation and presence of children," said the
ruling.
