May 2008

01 May 2008

Potential Provider Liability for Online Discrimination

The responsibility and liability of service providers operating on the internet for discriminatory content posted by users of their services was the subject of a recent decision of a full panel of the 9th Circuit of the United States Court of Appeals.

A recent case in a United States court has found that Roommates.com, LLC (Roommates), an online forum allowing people to advertise and search for rooms to let, could be liable for discrimination under the Californian Fair Housing Act (FHA), which prohibits discrimination based on race, colour, religion, sex, familial status, or national origin, and under Californian housing discrimination laws, which prohibit discrimination on the basis of matters such as sexual orientation, mental status, ancestry, source of income or disability.

Inappropriate Content and Potential Immunity

Online forums, directories and 'classifieds' services are now reasonably common place and can be found for a wide range of matters from advertising for room mates or flat mates; to job vacancies; to the provision of a wide range of services. In many cases, it would be impractical (simply because of the volume of postings) to expect the provider of the online forum, directory or service to review and filter postings for discriminatory, defamatory or other inappropriate content. 

In order to address this issue in the United States, Section 230 of the Communications Decency Act 1996 (CDA) was passed to provide immunity for providers of an "interactive computer service"[1] against content provided by third parties. In particular, it provides that no provider of an interactive computer service will be treated as publisher or speaker of information provided by another information provider. However this immunity does not extend to a party who can be regarded as an "information content provider", which is defined as someone who is "responsible, in whole or in part, for the creation or development of" the [offending content].

The majority of the Court of Appeals held that Roommates could not claim the immunity under the CDA and may be liable for discrimination under the FHA because Roommates had participated in the development of the content that was discriminatory (although the actual question of discrimination was left for the original court that heard the case to decide). 

In order to use the Roommates service, subscribers were required to create profiles providing information on matters such as their sex, race, marital status and sexual orientation in response to Roommates questions, which had to be answered in order to register and use the Roommates services. Each question could be answered only by selecting one of the options in a limited set of pre-populated answers provided in dropdown boxes. The Court found this to make Roommates more than a passive transmitter of information. Roommates was a developer, at least in part, of that information. 

The Court also considered Roommates search system and email notification system problematic for the purposes of the immunity available under the CDA. The system featured listings and sent emails to subscribers based on discriminatory criteria Roommates forced subscribers to disclose. Users advertising rooms could require that users seeking rooms who chose certain criterion (such as being African American or homosexual) would be excluded from viewing their listing.

The Court differentiates between the Roommates situation and that where a more generic search facility is supplied which does not use unlawful criteria to limit the scope of searches conducted. For example, if a user of search engine for a "white roommate" then the service provider of the search engine could not be said to have been involved in the development of an unlawful search. The Court also compared the situation to that of a website that allowed users to choose to view other users' profiles, or receive emails from other users, based on criteria manually selected by the user themselves. It said that such sites were not discriminatory as the choice of whether to exclude other users based on sex or race was made by the user themselves, and not by the website based on criteria a user is required to enter in creating their profile. 

The Court did, however, find that Roommates could claim the immunity under the CDA in respect of comments posted by users in the "Additional Comments" text box placed at the end of the profile. This was because Roommates provided simply a generic text prompt and no direct encouragement to publish illegal content. It therefore does not carry Roommates into the category of being a "developer" of the content.

New Zealand Anti-Discriminatory Legislation

Section 21 of the New Zealand Human Rights Act 1993 prohibits discrimination based on (among others) race, colour, religion and ethnic or national origins. Although there are limited exceptions to this prohibition, New Zealand does not have provisions for statutory immunity similar to the CDA which offer a "safe harbour" to online service providers. It could be that New Zealand service providers are more vulnerable than their United States counterparts to an allegation that they are assisting in discriminatory practices.

Although the Roommates case involves a case brought in a court in the United States, that jurisdiction is often looked to as a bellwether for future developments, especially in the area of technology. The key message from the case for online service providers is to not encourage illegal content, or design your website so as to require users to input illegal content. 

[1] Section 230 defines "interactive computer service" as any "information service, system or access software provider that provides or enables computer access by multiple users to a computer server".

Authors

Earl Gray

Partner - Intellectual Property

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Don Holborow

Partner - Corporate & Commercial

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Karen Ngan

Partner - Corporate & Commercial

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Richard Watts

Partner - Intellectual Property

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Sonya Hill

Senior Associate - Corporate & Commercial

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Mobile: +64 21 403 596

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