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Others post, you get sued

Internet attorney Eric J. Sinrod examines whether online service providers are legally responsible for content users create.

The stakes are enormous. The question is serious. Under what circumstances will the law hold interactive computer services liable for content posted by others on their sites?

This issue surfaced recently in a dispute involving Roommates.com, a Web site where applicants complete online questionnaires to locate roommates. In a federal lawsuit, the Fair Housing Councils of San Fernando Valley and San Diego in California complained that the Web site violated the Fair Housing Act and certain state laws.

A federal appellate court was called upon to determine whether the site was entitled to immunity under the terms of the Communications Decency Act. The CDA provides that "(no) provider...of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider."

The federal appellate court concluded that Roommates indeed was a content provider and therefore was not entitled to immunity.

The key point is that interactive computer services are granted legal immunity with respect to content created by others. Indeed, the grant of immunity applies to a defendant that is the "provider...of an interactive computer service" and that is being sued "as the publisher or speaker of any information provided by" another.

In this particular case, the parties agreed that the defendant, Roommates, is an interactive computer service provider. However, the CDA doesn't extend immunity from liability when a site operates as an information content provider. The statute defines a content provider as "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet."

Under current law, Roommates would not be liable if it simply published content provided by third parties. On the other hand, if it actually was responsible, at least in part, for the creation or development of the information at issue, Roommates would be deemed a content provider and thus not afforded immunity under the CDA.

After considering the arguments, the federal appellate court concluded that Roommates indeed was a content provider and therefore was not entitled to immunity. The court reasoned that the company created and developed the questionnaires and potential answer choices for subscribers. It thus was, to some extent, responsible for the information provided.

An argument can be made that this was not the right decision. After all, the members themselves provided the true content about themselves and their preferences, while Roommates simply provides a forum.

Furthermore, even though the site does provide a mechanism and channels for people to potentially discriminate (which plainly is not a good thing and violates the law), the site does not dictate the ultimate descriptions and preferences submitted.

Consider also that Roommates contains approximately 150,000 active listings at a time. Should the site be deemed potentially liable for discriminatory postings among these listings and be forced to police those postings on a constant basis?

Congress enacted the immunity safe harbor contained in the CDA to protect Internet commerce. The law shields interactive computer service providers from liability when it comes to third-party content. But where does one draw the line?

In this case, Roommates facilitates the process so that people looking for roommates can provide descriptions and preferences. Sometimes, the content submitted may be discriminatory in nature.

Has the site gone so far as to be deemed a content provider, with respect to information supplied by subscribers? Based upon the facts submitted for its review, the federal appellate court ruled in the affirmative.

Now it's going to be up to other courts to grapple with the reach of CDA immunity.

Update: October 25, 2007: In my column above, I asked whether the site has gone so far as to be deemd a content provider, with respect to information supplied by subscribers. As I explained, based on the facts submitted, the initial three-judge appellate panel ruled in the affirmative. But, as it turns out, that is not the end of the story. Not necessarily. Indeed, based on a very recent vote of a majority of the judges of the federal appellate court, this decision has been vacated pending en banc review.

What does that mean? It means that an eleven-judge panel will be called upon to resolve the issues. Given that the decision by the three-judge panel has been vacated, it is very possible that the eleven-judge panel will come to a different conclusion with respect to CDA immunity in this case. Stay tuned.