Substantial Similarity

Yesterday, the Ninth Circuit offered its latest take on Section 230 immunity in Fair Housing Counsel of San Fernando Valley v. Roommates.com. The court, in three separate opinions, offered a novel reading of the statute that, unless limited by future panels to the unique facts of this case, will prove a font of disastrously uncertain liability for websites and other web-based services.

Section 230, for those unfamiliar, provides online services immunity from any cause of action, with the exception of federal intellectual property and criminal claims, arising out of their publication of content authored by third parties. Although the statute has traditionally been interpreted expansively, after the most recent major 230 decision in California, the state Supreme Court’s reaffirmation of a broad immunity in Barrett v. Rosenthal, a backlash of sorts was probably inevitable.

And if a court wants to rein in Section 230, the best way to do so is through classification of the defendant as an “information content provider” – defined as “any person or entity that is responsible in whole or in part for the creation or development of information provided through the internet.” The court, stretching that definition to what one has to imagine is its logical breaking point, held that Roommates.com, a website that allows users to post and search profiles of those offering and seeking housing, could be held liable for discriminatory preferences expressed in those profiles.

The panel’s three opinions are rife with juicy tidbits, but I’ll just focus in on a few of the highlights. First, the court opined that because Roommates designed the questionnaire used by its members to create their profiles, including drop-down forms that allowed users to state sex and gender-based roommate preferences, it could be held liable as an information content provider of the questionnaire itself. I don’t find this particularly troubling since the mere offering of choices in a drop-down menu will rarely be enough to create liability, even without immunity.

If the court had stopped there, this decision would be within the bounds of reasonable interpretation of the statute. But things went steeply downhill from there. Next, the court held that Roommates could not avail itself of 230 immunity for its publishing and distributing of user profiles. According to the court:

While Roommate provides a useful service, its search mechanism and email notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals. By categorizing, channeling and limiting the distribution of users’ profiles, Roommate provides an additional layer of information that it is “responsible” at least “in part” for creating or developing.

This passage should strike fear in the heart of any website owner. By allowing users to search or filter a database using certain criteria and programmatically returning results, a provider can be classified as an information content provider and thus ineligible for 230 immunity. Note that while in this case those search criteria may have been illicit categories, nothing in the court’s logic dictates that the search mechanism in itself rely on categories that are violative of the law. An “additional layer of information” can be added by in many ways – by providing a general purpose search feature, for example. In fact, under a broad reading of the court’s decision, any degree of interactivity is sufficient to undermine immunity. This flies in the face of the purpose of 230 as well as the Ninth Circuit’s own precedent.

The court’s test for status as an information content provider is, in some respects, reminiscent of the Grokster inducement standard: where a provider “actively encourages” third parties to author and post “defamatory, private or otherwise tortious or unlawful information,” 230 immunity is not available. The limits of this standard are fuzzy at best. Are explicit requests for false and defamatory postings necessary? Or is a forum generally devoted to unconfirmed reports of unsavory behavior enough? If the court was going to issue an opinion that was wrong as a matter of both law and policy, it could have at least been more precise in its choice of words.

In what would appear the saving grace of this decision, the court held that Roommates could not be held liable for information written by users in the free-form Additional Comments section of their profiles.¹ But tucked into this otherwise noncontroversial discussion is a rather chilling statement. According to the court, Roommates retained immunity for the Additional Comments section, in part, because it did not use that information “to limit or channel access to listings.” That passage, again, suggests that if Roommates allowed users to search or filter results on the basis of these free form user-generated responses, immunity may be called into question.

Hopefully, future Ninth Circuit panels interpreting 230 are as quick to ignore precedent as this one was.

More commentary from Eugene Volokh, Eric Goldman, and Joe Gratz.

1. Judge Reinhardt in his partial dissent would have held Roommates potentially liable for discriminatory preferences disclosed in this text box, in part because the Additional Comment box appears after questions regarding gender and sexual preference, and – no kidding – because some users of the site like “whiteboy73″ and “blackbarbie” chose screennames that may reveal their race. I’m at a loss for any charitable interpretation of Reinhardt’s logic, so I’ll let the reasoning speak for itself. [↩]