Federal Safe Harbor for Web Forums Grows Smaller After Ninth Circuit Ruling

April 21, 2008 | Insights

By Paul C. Watler

Internet service providers who shape or direct the contribution of content onto their websites may not enjoy the safe harbor protections Congress provided more than ten years ago, according to a closely watched opinion from the U.S. Court of Appeals for the Ninth Circuit.

In Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, the Ninth Circuit illuminated the boundaries of the statutory free speech protection under Section 230 of the Communications Decency Act of 1996. The statute granted immunity to ISPs from liability for third party content that appears on their Internet forums. The Ninth Circuit found that when service providers themselves effectively produce content that runs afoul of the law, such as the prohibition against discriminatory real estate advertising, section 230 does not shield a Website operator from liability.

An expansive reading of the Roommates.com opinion may have implications for media companies who not only operate websites but who actively solicit third party content and seek to direct Internet dialogue. Although the decision was only concerned with content that allegedly facilitated discrimination in housing rentals, future cases may seek to extend the holding to reach situations involving content that is allegedly defamatory, an invasion of privacy, or otherwise tortious.

The Roommates.com site directed users searching for housing to check a series of boxes expressing preferences as to gender, marital status, familial status, religious preference, and sexual orientation. Fair housing advocates contended the practice violated federal law, which forbids denying rental housing on the basis of age, gender, familial status, race, or religion. Many local laws also prohibit real estate discrimination on the basis of sexual preference.

Ninth Circuit Judge Alex Kozinski, who authored the majority opinion in the eight-to-three en banc decision, wrote:

A real estate broker may not inquire as to the race of a prospective buyer, and an employer may not inquire as to the religion of a prospective employee. If such questions are unlawful when posed face-to-face or by telephone, they don’t magically become lawful when asked electronically.

The Roommates.com decision found that the section of the website allowing users to post undirected, free-form comments did enjoy section 230 immunity and indicated that the statute’s protection for service providers taking down problematic content remains intact.

A vigorous dissenting opinion by Judge M. Margaret McKeown labeled the ruling an “unprecedented expansion of liability for Internet service providers [that] threatens to chill the robust development of the Internet that Congress envisioned.” McKeown warned the opinion may expose “every interactive service provider for liability for sorting, searching and utilizing the all too familiar drop-down menus” common to many websites and search engines.

— Paul Watler is a partner at Jackson Walker. He can be reached at pwatler@jw.com.

The opinions expressed are those of the author and do not necessarily reflect the views of the firm, its clients, or any of its or their respective affiliates. This article is for informational purposes only and does not constitute legal advice.