Web Site Is Held
Liable for Some User Postings
By ADAM LIPTAK,
NYTimes on the Web, May 18, 2007
San Francisco, May 16 -- A Web
site that matches roommates may be liable for what its users say about their
preferences, a fractured three-judge panel of the federal appeals court in San
Francisco ruled yesterday.
The suit was brought by two California fair housing groups that objected to
postings on the matching service, Roommate.com. The groups said the site
violated the Fair Housing Act by allowing and encouraging its users to post
notices expressing preferences for roommates based on sex, race, religion and
sexual orientation.
The ruling knocked down the main defense of the site. In 1996, Congress
granted immunity to Internet service providers for transmitting unlawful
materials supplied by others. Most courts have interpreted the scope of
that immunity broadly.
Though their rationales varied, all three judges in the decision yesterday
agreed that the site could be held liable for soliciting information from users
through a series of menus about themselves and their preferred roommates and for
posting and distributing profiles created from the menus. The choices on
the menus included gender, sexual orientation and whether children were
involved.
Because Roomate.com created the menus, the court ruled, it cannot claim immunity
under the 1996 law, the Communications Decency Act.
But Judges Alex Kozinski and Sandra S. Ikuta ruled that postings from users in a
part of their profile designated “additional comments” could not subject the
site to liability because it was essentially uninvolved in creating them.
Judge Stephen Reinhardt dissented on that point, citing examples (“must be a
black gay male”) and saying the entire site was “an integral part of one
package.”
The court, the United States Court of Appeals for the Ninth Circuit, sent the
case back to a trial judge for a determination of whether the site had violated
the Fair Housing Act, which forbids publishing real estate notices indicating
preferences based on race, religion, sex or familial status.
The three judges each wrote separately, and piecing together the reasoning for
the decision was difficult, said Eric Goldman, a law professor at Santa Clara
University.
Still, Professor Goldman said, the decision represented a fundamental shift.
“To date,” he said, “The law has been almost uniform that a Web site isn’t
liable for what its users say. The problem here is that the Web site
offered up choices for users to structure their remarks. That creates a
hole plaintiffs can exploit.”
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