Ninth Circuit Clarifies the Scope of Immunity for Website Operators Under the Communications Decency Act of 1996

The Communications Decency Act of 1996 (codified at 47 U.S.C. § 230) provides immunity to interactive computer services, e.g., websites, against liability arising from content created by third parties. This immunity only applies if the interactive computer service provider is not also an information content provider, defined as someone who is "responsible, in whole or in part, for the creation or development of the offending content." 47 U.S.C. § 230(f)(3).

The Act was prompted by a state court ruling (Stratton Oakmont, Inc. v. Prodigy Servs. Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995)), which held an online services provider liable as a "publisher" because it had voluntarily deleted messages from a message board. The court reasoned that the defendant's voluntary self-policing made it akin to a newspaper publisher and therefore responsible for the messages on its message board. In passing the CDA, Congress sought to immunize this sort of conduct:

"Section [230] provides 'Good Samaritan' protections from civil liability for providers . . . of an interactive computer service for actions to restrict . . . access to objectionable online material. One of the specific purposes of this section is to overrule Stratton Oakmont v. Prodigy and any other similar decisions which have treated such providers . . . as publishers or speakers of content that is not their own because they have restricted access to objectionable material."

H.R. Rep. No. 104-458 (1996) (Conf. Rep.), as reprinted in 1996 U.S.C.C.A.N. 10.

The scope of this immunity, however, has been an issue before the courts, and was recently analyzed in depth by the Ninth Circuit in Fair v. Roommates, 521 F.3d 1157 (9^th Cir. 2008).

At issue in Fair was defendant's website, Roommates.com. Subscribers using the Roomates.com website were required to create profiles disclosing basic information (name, location, email address), as well as the individual's sex, sexual orientation and whether he would bring children to a household. A subscriber was also required to input his preferences in roommates with regard to these latter three criteria. Subscribers were also encouraged to provide additional information about themselves in an open-ended "Additional Comments" section. Plaintiffs, The Fair Housing Councils of the San Fernando Valley and San Diego, sued Roommate, alleging violations of the federal Fair Housing Act and California housing discrimination laws. Roommate asserted immunity under the CDA.

After a review of the history of the CDA, the Ninth Circuit held that § 230 immunity did not apply as to Roommate's pointed questions, answers and resulting profile required of subscribers. However, the court held that § 230 immunity did apply as to information subscribers provided in the open-ended "Additional Comments" section of the profile.

A central issue in the Fair decision was determining whether Roommate fell within the definition of "internet content provider," and therefore not subject to immunity. The court found that it did with respect to the required profile questions, because "[b]y requiring subscribers to provide the information as a condition of accessing its service . . ., Roommate becomes much more than a passive transmitter of information provided by others; it becomes the developer at least in part of the information." 521 F.3d at 1166. In reaching this decision, the court clarified a prior ruling suggesting that a website could never be liable for third party content (Carafano v. Metrosplash.com, Inc., 339 F.3d 1119 (9^th Cir. 2003)), explaining that even if data is supplied by third parties, the website operator may still contribute to the content's illegality and thus be held liable as a developer. The court also distinguished the Stratton Oakmont case (the impetus for the CDA): "Roommate is not being sued for removing some harmful messages while failing to remove others; instead, it is being sued for the predictable consequences of creating a website designed to solicit and enforce housing preferences that are alleged to be illegal." 521 F.3d at 1170.

As to the "Additional Comments" section, the court held that this third party provided content fit squarely within the ambit of § 230 immunity. Unlike the information provided in response to Roommate’s pointed and specific questions, the material in the "Additional Comments" section "comes entirely from subscribers and is passively displayed by Roommate."

In conclusion, the court left the following message to website operators: "If you don't encourage illegal content, or design your website to require users to input illegal content, you will be immune." 521 F.3d at 1175.