(post by BT) This site - http://www.roommates.com - is loaded with housing discrimination ads. While Craig’s List and many other popular local and national classifieds sites have a full program in place to ensure equal housing opportunities, roommates.com had been making excuses.

See the transcript of this release from Realtor.com. It refers to the “230 immunity” law.

No FHA Immunity for Roommate Locator Website

A federal appellate court has considered whether an apartment finding website was protected by a federal statute from alleged violation of the federal Fair Housing Act (“FHA”) by requiring users to disclose their housing preferences. Click here to read the earlier decisions in this case.

Roommate.com, LLC (“Website”) operates a website which serves as a roommate locat0r service. The Website allows users to post notices about residences that they have available for leasing and also allows users to post notices about residences they are willing to share. Basic membership is free and allows the user to create a personal profile, search the database, and send messages to other users. Membership requires the authoring of a personal profile, which is based on the user’s answers to a series of questions about topics such as the user’s age, gender, sexual orientation, and number of children. Under its terms of service, the Website states that it does not screen posts on the site and that users are “entirely responsible” for the content they post.

The Fair Housing Council of San Fernando Valley and the Fair Housing Council of San Diego (collectively, “Councils”) filed a lawsuit against the Website. The lawsuit alleged violations of the FHA as well as violations of California state laws. The Councils alleged that the Website violated the FHA because it solicited and used discriminatory information from its users. The Website argued that it was shielded from immunity by the Communications Decency Act (“CDA”). The trial court agreed with the Website, and ruled in its favor. The Councils appealed.

The United States Court of Appeals for the Ninth Circuit partially reversed the trial court and remanded the case back to the trial court for further proceedings. The court considered whether the CDA shielded the Website from the Councils’ lawsuit. The CDA contains a provision which states that “[n]o provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The CDA clarifies its effect on other laws by specifically exempting its effect on federal criminal laws, intellectual property laws, and certain federal privacy laws. The CDA does not mention the FHA.

The court first looked at the history of the CDA. Congress created the CDA in response to a case in the late 1990s where an internet service provider (“ISP”) was held liable for a defamatory post on its website. The court in that case had ruled that because the ISP attempted to review some of the postings on the site, the ISP was therefore liable for the entire site’s content. By contrast, if the ISP had taken no action over the content of postings, it would not have had any liability in the defamation lawsuit. Through the CDA, Congress attempted to change this result by making a website liable only if it developed the content on its website and not liable for content posted by others, even if the website did some filtering of the content posted by others on the site.

Looking at the Website’s registration process, the court determined that the Website did require users to provide information which could be used for a discriminatory purpose under the FHA and so the Website was not shielded by the CDA. As part of the registration process, the Website required users to disclose their gender, family status, and sexual orientation by providing users a limited number of responses to questions from a drop down menu containing preselected answers. The court noted that soliciting this information in other contexts could be illegal, such as a real estate broker inquiring about the race of a potential applicant. The court also found because the Website required this information and shared this information, it became a “developer” of this information and so could not claim immunity under the CDA.

Next, the court considered whether the Website’s display of user’s preferences could receive immunity under the CDA. Each subscriber has a profile page on which each user’s personal information is displayed. The Website also offers a search feature in which certain criteria can be selected, such as gender, race, sexual orientation, or familial status. By displaying such information and allowing users to generate searches using this information, the Website was again helping to “develop” the information displayed on its site and so could not claim immunity under the CDA. Thus, the court reversed the trial court’s entry of judgment in favor of the Website on the registration process and posting of user preferences, sending these allegations back to the trial court for further proceedings.

Finally, the court evaluated whether the Website could claim CDA immunity for the “Additional Comments” field on the site. The Website provides users with a blank box in which to describe themselves at the end of the registration process; users are not required to provide this information. The Website publishes these comments as written. The Councils brought forth instances when users had set forth discriminatory preferences in this field. However, the court ruled that the Website was entitled to CDA immunity for this part of the Website because the Website played no role in the development of this information on the Website. Users provided all of the information found in these fields, and the Website did nothing more than post the users comments on the Internet. Since the Website’s actions were exactly the type of behavior that the CDA sought to immunize, the court affirmed the trial court’s grant of immunity under the CDA for these allegations.

Three judges dissented, arguing that the Website should have immunity from the Councils’ entire lawsuit.

Fair Housing Council of San Fernando Valley v. Roommates.com, LLC, Nos. 04-56916, 04-57173, 2008 WL 879293 (9th Cir. Apr. 3, 2008). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information]. Source: Realtor.com