An 11-judge panel of the 9th US Circuit Court of Appeals in California recently handed down a decision that could affect how liability is determined for the content provided on interactive web sites.
The ruling, interpreting the Communications Decency Act ("CDA") as failing to immunize Roommates.com against alleged violations of the Fair Housing Act ("FHA"), came in a case brought by the Fair Housing Council of San Fernando Valley last year.
According to attorney Michael Bennett, of Wildham Harrold in Chicago who counsels clients on CDA issues, although the CDA provides immunity for interactive computer services for many types of liability arising from content posted by third parties, the 9th Circuit interpreted the CDA as placing certain limits on that immunity.
In this case, Roommates.com, a housing search web site, required users to provide personal demographic information on race, gender and sexual orientation. The 9th circuit court held that Roommates.com is ineligible for CDA immunity in posing questions to users (e.g., "What is your gender?"); and inducing users to express allegedly unlawful preferences by requiring them to answer certain questions (e.g., "Are you willing to live only with gay males?"), said Bennett. In addition, using a search engine to filter and sort allegedly discriminatory information is not protected under the CDA.
The 9th Circuit has traditionally been a frontrunner in interpretation of the CDA and this critical opinion will widely influence courts outside the 9th Circuit, Bennett said. With issues of immunity under CDA aside, the lower court will now determine whether Roommates actually violated the Fair Housing Act.