Business Law 11th Edition by Kenneth Clarkson,Roger LeRoy Miller,Gaylord Jentz,Frank Cross

تمرين 19

Fair Housing Council of San Fernando Valley v. Roommate.com, LLC
United States Court of Appeals, Ninth Circuit, 2007. 489 F.3d 921.
• Background and Facts Roommate.com, LLC, operates an online roommate-matching Web site at www.roommates.com. The site helps individuals find roommates based on their descriptions of themselves and their roommate preferences. Roommates.com has approximately 150,000 active listings and receives about a million user views per day. To become members of Roommate, users respond to a series of online questions, choosing from answers in drop-down and select-a-box menus. Users disclose information about themselves and their roommate preferences based on age, gender, and other characteristics, as well as on whether children will live in the household. Members can create personal profiles, search lists of compatible roommates, and send "roommail" messages to other members. Roommate also e-mails newsletters to members seeking housing, listing compatible members who have places to rent. The Fair Housing Councils of San Fernando Valley and San Diego, California, filed a suit in a federal district court against Roommate, claiming that the defendant violated the Fair Housing Act (FHA) by asking for and distributing the information in its member profiles. The court held that the Communications Decency Act (CDA) barred this claim and dismissed it. The councils appealed to the U.S. Court of Appeals for the Ninth Circuit.
KOZINSKI, Circuit Judge.
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The touchstone of [the CDA] is that providers of interactive computer services are immune from liability for content created by third parties. The immunity applies to a defendant who is the "provider * * * of an interactive computer service" and is being sued "as the publisher or speaker of any information provided by" someone else. Reviewing courts have treated [this] immunity as quite robust. [Emphasis added.]
The Councils do not dispute that Roommate is a provider of an interactive computer service. As such, Roommate is immune so long as it merely publishes information provided by its members. However, Roommate is not immune for publishing materials as to which it is an "information content provider."[Under the CDA, a] content provider is "any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet." In other words, if Roommate passively publishes information provided by others, the CDA protects it from liability that would otherwise attach under state or federal law as a result of such publication. But if it is responsible, in whole or in part, for creating or developing the information, it becomes a content provider and is not entitled to CDA immunity.* * *
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* * * Roommate is "responsible" for [the] questionnaires [that it requires users to fill out to register with the service] because it "creat[ed] or develop[ed]" the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.
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We now turn to the more difficult question of whether the CDA exempts Roommate from liability for publishing and distributing its members' profiles, which it generates from their answers to the form questionnaires.
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* * * Roommate does more than merely publish information it solicits from its members. Roommate also channels the information based on members'answers to various questions, as well as the answers of other members. Thus, Roommate allows members to search only the profiles of members with compatible preferences. For example, a female room-seeker who is living with a child can only search profiles of room-providers who have indicated they are willing to live with women and children. Roommate also sends room-seekers e-mail notifications that exclude listings incompatible with their profiles. Thus, Roommate will not notify our female about room-providers who say they will not live with women or children.
While Roommate provides a useful service, its search mechanism and e-mail notifications mean that it is neither a passive pass-through of information provided by others nor merely a facilitator of expression by individuals. By categorizing, channeling and limiting the distribution of users' profiles, Roommate provides an additional layer of information that it is responsible at least in part for creating or developing.
• Decision and Remedy The U.S. Court of Appeals for the Ninth Circuit concluded that the CDA does not immunize Roommate for all of the content on its Web site and in its e-mail newsletters. The appellate court reversed the lower court's summary judgment and remanded the case for "a determination of whether [Roommate's] non-immune publication and distribution of information violates the FHA [Fair Housing Act]."
• The Ethical Dimension Do Internet service providers (ISPs) have an ethical duty to advise their users if the information that the users provide for distribution through the ISPs might violate the law Explain.
• The E-Commerce Dimension Should the courts continue to regard the CDA's grant of immunity to ISPs as "quite robust" Why or why not