Category: Section 230

Doe v. SexSearch.com, No. 07-604, — F.Supp. —-, (N.D. Ohio August 22, 2007)

Hat tip to Michael Erdman of the new Online Liability Blog for his comprehensive post on this week’s decision by the U.S. District Court for the Northern District of Ohio in an interesting case involving Section 230 immunity.

The facts of the case are pretty wacky, and the alignment of the parties is not what you’d expect. Anonymous plaintiff Doe sued SexSearch.com for, among other things, breach of contract, fraud and breach of warranty after he was arrested for illegal sexual conduct with a minor he met through the SexSearch.com website. The girl’s profile stated she was 18 when in reality she was only 14.

SexSearch filed a 12(b)(6) motion to dismiss, asserting immunity under the Communications Decency Act at 47 U.S.C. § 230. Section 230 provides that “[n]o 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,” and that “[n]o cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” The court granted the motion to dismiss.

There are a couple of particularly interesting points in the court’s decision, although the outcome is not surprising, considering the generally favorable treatment Section 230 has gotten over the past decade or so, starting with the 4th Circuit’s decision in Zeran v. America Online, Inc., 129 F.3d 327, 330-31 (4th Cir.1997).

In this case, the plaintiff argued that SexSearch, and not the author of the profile, was the actual information content provider because SexSearch “reserved the right, and [did] in fact, modify the content of profiles when they [did] not meet the profile guidelines and as such they [were] responsible in whole or part for the creation or development of the information.” The court rejected this argument, because while SexSearch may have reserved the right to modify the content, the complaint did not allege that SexSearch modified the content in question.

Another interesting point in the case was the court’s confirmation that Section 230 applies not only to tort claims, but other causes of action as well. The plaintiff had argued that Section 230 immunized service providers only from causes of action for defamation. Citing to a number of cases, however, in which Section 230 had immunized defendants for causes of action such as breach of contract, negligence and violation of state commercial e-mail laws, the court looked to the plain language of the statute, which provides that “no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.

Case appears below (or click through if it doesn’t show up in the RSS feed):

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, No. 04-56916 (9th Cir. May 15, 2007)

Ed. note: Funny thing about the blogosphere — news gets old fast. The case of Fair Housing Council v. Roommates.com was released more than 2 weeks ago, and I’m just getting around to reviewing it. When the opinion came down, it got lots of attention [see, e.g., here and here]. I hope you won’t mind this belated review of an important decision.

The Fair Housing Councils of San Fernando Valley and San Diego, California sued Roommates.com, alleging that the the popular roommate matching service violated the federal Fair Housing Act and a number of state laws. The plaintiffs moved for summary judgment at the trial court level, arguing that Roommates.com is liable for making and publishing “discriminatory statements that indicate preferences based on race, religion, national origin, gender, familial status, age, sexual orientation, source of income, and disability, all in violation of fair housing laws.”

Both parties moved for summary judgment, and the trial court dismissed the case, holding that the Communications Decency Act [at 47 U.S.C. 230] provided Roommates.com with immunity from liability. The plaintiffs sought review with the Ninth Circuit. On appeal, the court reversed most of the holding as to Section 230 immunity.

At issue was Roommates.com’s series of online questionnaires that new members filled out when signing up for the service. Individuals signing up for the service were required to provide a variety of information, including whether they would be willing to live with members of the opposite sex, or with gay men or lesbians.

Roommates.com argued that it could not be held liable for violation of the Fair Housing Act, as the website was merely an interactive computer service allowing access to information provided by third party information content providers, and therefore Section 230 immunity should apply. The Ninth Circuit disagreed, however, providing two different reasons why immunity was inapplicable.

First, the court differentiated the case from Carafano v. Metrosplash, 339 F.3d 1119 (9th Cir. 2003). In Carafano, the Ninth Circuit upheld Section 230 immunity for a dating website accused of publishing defamatory material provided in response to online questionnaires used to generate user profiles. The present case differed from Carafano inasmuch as the interactive questionnaires in that case did not specifically solicit tortious content. It was the user of the site which provided the objectionable content. In this case, however, the Roommates.com site provided the mechanism and framework to solicit tortious content, i.e., content that would indicate a preference for a roommate which could potentially violate the Fair Housing Act.

Aside: Judge Kozinski uses a hypothetical involving a website called “harrassthem.com” to illustrate the above point. After the decision came down, Joe Gratz grabbed that domain name. He’s asking for suggestions about how the domain might be used.

Despite the differences between Roommates.com and the website in Carafano, the court found another, independent basis for determining that Section 230 did not apply. The mechanism by which users could search available listings made Roommates.com an information content provider itself, and thereby outside the scope of Section 230 immunity. For example, users could search for listings matching certain criteria (e.g., will only live with straight people). Results for searches would exclude listings that did not match the searcher’s criteria. The court held that this exclusion of information in the search results added a layer of information in addition to the information provided by the site’s members. Accordingly, by adding the layer of information, Roommates.com became an information content provider, and outside Section 230 immunity which only protects providers that distribute information provided by third parties.