Craigslist was started in 1995 by software engineer Craig Newmark. It is a simple website that has become one of the most popular on the internet by building a massive community of users who use it to find jobs, goods for sale or events taking place, all of them categorised by geographical location.
A civil rights group, the Chicago Lawyers’ Committee for Civil Rights Under Law (CLCCRUL), says that between July 2005 and now, the Chicago pages of craigslist featured over 200 ads that excluded prospective tenants on the basis of race, gender, family status, marital status, national origin, and religion.
Some of the ads apparently included statements such as “no minorities”; “African Americans and Arabians tend to clash with me so that won't work out"; and “No children”.
The group is trying to ensure that ads posted on the internet comply with the same requirements that are imposed on ads published in newspapers. It is arguing that the company is acting as a publisher.
But this is impractical, says craigslist CEO Jim Buckmaster:
“Though possibly well-intentioned, this lawsuit misguidedly demands that we regress to primitive, mistake-prone, and wholly inadequate methods (such as manual review by our staff of the 2 million free housing ads of unlimited length posted each month, a volume of ads greater than that received by all US newspapers combined), methods which would actually be less effective in catching discriminatory ads than what we have in place currently, and which would vastly reduce the number of legitimate non-discriminatory ads that the site could process.”
According to Buckmaster, the suit goes further, seeking to force the firm to pass on to regulatory authorities the details of those individuals who post discriminatory ads. This, he says, clearly violates the right to privacy and “may actually run counter to federal law governing the handling of user information.”
He says the craigslist community has been successful in tackling discrimination. Information about the Fair Housing Act is provided on the website, and the few biased ads that are posted on the site are usually removed very quickly by means of a flagging system.
Buckmaster predicts that the suit will fail, following previous rulings that have protected ISPs and website operators.
US ISPs and website operators are generally immune from liability under a provision in the Communications Decency Act which grants immunity from suit to those who provide material on the internet that was written by others. While most of the Communications Decency Act has been struck down as unconstitutional, this provision survives.
In the UK there is no obligation to monitor the content of websites and monitoring is generally thought to create a greater likelihood of being considered responsible for third party content.
However in order to avoid liability under the E-Commerce Regulations and the Defamation Act for the third party posting of unlawful material, the service provider must immediately remove or disable access to material that it learns is unlawful.
According to Clare O’Connell, a solicitor with Pinsent Masons who specialises in technology law, there are specific risks involved in advertising property for sale online in the UK.
“Where the site is a forum for property sellers to advertise, there is always a risk it might become liable for inaccurate ads," she said. Property misdescription laws apply in the UK with which operators must comply if they act as estate agents. "But they can avoid holding themselves out as estate agents if they make it clear that ads are supplied by the property sellers and if they actively discourage users from posting misleading ads."
O'Connell said it is also important for site operators to offer a simple system for users to complain about such ads – and they need to remove offending ads quickly. "All of this needs to be written into the terms and conditions," she said, "so that everyone knows where they stand."
She said the Office of Fair Trading has also indicated that where property websites provide a "for sale" board, send out property particulars or handle queries from potential buyers they will be or are likely to be considered to be engaging in estate agency work. "As an estate agent they would require to verify the content of the property advertisements to avoid criminal liability for false or misleading statements made in relation to the properties advertised,” she said.
