Tom Just De-Friended the Ninth Circuit

Sunday, June 1, 2008 - 00:00

This curious title invites two questions: "Who is Tom and what is de-friending?" Tom is Tom Anderson, the President of MySpace, the most used social networking website on the Internet. Tom is popular because when a new user registers for an account with MySpace, her first "friend" is automatically Tom. How does this happen?

What Are Social Networking Websites?

Social networking websites like MySpace, Plaxo, Facebook, and Classmates are online communities that allow users to create profiles and post content. Users can also browse through content posted by other users. The profiles are relationally linked - "friends" can access the profiles of other people they designate as "friends." The websites also allow a user to view the profiles of other users from around the world, and, if she pleases, "friend" a fellow user by requesting that the other user join her cyber-social network. ("To friend" is a cybervariation of "to befriend"). The inverse is also true: the user can "de-friend" a user once he is in her network, thereby terminating the linkage and removing that user from her Web social circle.

Now, why would Tom want to "de-friend" the United States Court of Appeals for the Ninth Circuit? Until recently, operators of social networking websites, such as MySpace, enjoyed broad immunity for content posted by their users. However, operator immunity received a serious blow in April 2008, in Fair Housing Council of San Fernando Valley v. Roommates.com , 521 F.3d 1157 (9th Cir. 2008). There, the Ninth Circuit found that the operator of the very popular social networking website Roommates.com could be liable under the Fair Housing Act and several state discrimination laws. As discussed below, this case substantially narrows the statutory immunity that shields social networking website operators from liability for content placed by users.

Liability Of Social Networking Website Users

Users of social networking websites are generally liable for their own illegal conduct just as they would be if their web-based actions were committed off-line. A user who posts a copyrighted photograph in her MySpace profile will be liable to the photographer for copyright infringement. Similarly, a student who posts unflattering statements about the school principal on his MySpace profile may be liable for defamation. One case recognizing that students posting web content may be liable for defamation is J.S. v. Blue Mountain School Dist., 2007 U.S. Dist. LEXIS 23406 (M.D. Pa. 2007) (injunction against student suspension denied. ) Compare, Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587 (W.D. Pa. 2007).

Liability Of Social Networking Website Operators

Federal statutes protect the operators of social networking websites from liability for wrongful actions committed by their users. The common theme among them is that operators are immune from liability for the unlawful content posted by third parties. For example, the Digital Millennium Copyright Act, 17 U.S.C. § 512(c), immunizes operators from copyright infringement suits if users post content in their profiles that they do not rightfully own. Therefore, if the photographer sues MySpace for its user's copyright infringement, Section 512(c) insulates MySpace from liability.

The focus of this article, and most case law, is the more general immunity granted by the Communications Decency Act. Section 230 of the Act protects website operators from liability arising from the publication of content by third parties such as users or members. The statute, 47 U.S.C. § 230, distinguishes between content providers and service providers, recognizing that a service provider, or website operator, should not be liable for content provided by others. The Act states that an operator shall not "be treated as the publisher or speaker of any information provided by [a] content provider." The immunity applies as long as the operator did not contribute, "in whole or in part, to the creation or development" of the content. The statute further provides immunity to operators by considering them service providers and not content providers even if they act as Good Samaritans by detecting and editing objectionable content.

The primary distinction between operators and users is that a user actively creates or develops the content while an operator passively provides a service that hosts the content on a website. The line between passive hosting and active creation is where operator immunity under Section 230 ends and user liability begins. Therefore, if a school principal sues MySpace for its user's defamation, will MySpace be protected by Section 230? The answer depends upon where that line is drawn, which is where Roommates.com leaves its mark.

The Impact Of Roommates.com On Operator Liability

Roommates.com is a social networking website, run by Roommate.com, LLC, designed to match potential landlords with potential tenants. For a user to create a member profile on Roommates.com, she was required to identify her sex, her sexual preference, and whether or not she had children by selecting answers from a pre-populated list. The user was also required to describe the people with whom she would be willing to live, based on those attributes. The site then allowed users to browse listings based on their preferences.

The plaintiffs alleged that Roommate.com violated the Fair Housing Act which prohibits discrimination based on sex and familial status. The court rejected Roommate.com's argument that it was merely an operator and, thus, immune from liability. The court found that Roommate.com was not immune because it "developed, at least in part," the allegedly illegal content. The court reasoned that Roommate.com developed the content in two ways, by creating the questions that potential users had to answer before joining and by actively "channel[ing] subscribers away from listings where the individual offering housing [] expressed preferences that [were not] compatible with the subscriber's answers." It distinguished between an operator who serves as a passive conduit for its users' content where neutral tools can be used for proper or improper purposes, and one that actively solicits the allegedly illegal content and allows its users to behave illegally by using that content. Therefore, the court held that Roommate.com crossed the line from passively hosting content to providing content to the public.

In sum, the Ninth Circuit held that Roommate.com could not avail itself of the immunity provided to operators in Section 230 because it played a part in developing the allegedly illegal content when it solicited answers to discriminatory questions and allowed its members to search based on those answers.

Other Circuits have confronted similar issues of operator liability and found that operators who allow users to post content on their websites are immune from liability arising from that content because they are merely providing a service and not creating the content. In Chicago Lawyers' Comm. for Civil Rights Under Law, Inc. v. craigslist, Inc. , 519 F.3d 666 (7th Cir. 2008), decided three weeks before Roommates.com , a public interest group challenged craigslist, another social networking website that hosts real estate listings, under the Fair Housing Act, making the same allegations made in Roommates.com . In Universal Commc'n Sys., Inc. v. Lycos, Inc. , 478 F.3d 413 (1st Cir. 2007), the plaintiffs sued the operator of a financial message board for defamation when a user posted a disparaging message regarding the plaintiff's financial condition. Both the First and Seventh Circuits held that Section 230 gave the operator immunity for content posted on its website by third parties. (Notably, in dicta, the First Circuit doubted that immunity would end even if an operator takes affirmative steps to induce or foster the creation of allegedly illegal content.).

The Ninth Circuit distinguished Roommates.com from these two cases, as well as others that grant operator immunity based on Section 230. The court observed that neither Lycos nor craigslist played a role in the creation or development of the content other than merely providing a forum for the allegedly illegal content. In contrast, the Ninth Circuit reasoned, Roommate.com developed, albeit in limited part, the site's content by requiring users to answer questions and using those answers as search criteria.

Advice & Recommendations

Roommates.com may have sounded the death knell for the wide-ranging content-based immunity previously enjoyed by website operators hosting third party content. A strict reading of Roommates.com suggests that a social networking website operator may be liable for content posted by its users if it plays any part in "developing" that content. For example, MySpace attempts to restrict adults from accessing the profiles of underage users by channeling its users based on their age. Relying on Roommates.com , a plaintiff who is assaulted after a meeting with a pedophile who lied about his age might successfully argue that the act of channeling users contributes to the development of content when claiming that MySpace was negligent in its efforts to protect minors. A district court in Texas dismissed a similar claim, but might have held differently if Roommates.com had already been decided. Likewise, websites such as RateMyProfessor.com, where students are invited to evaluate their college instructors, might be liable to defamatory comments that get by the operator's screening efforts.

As a result of Roommates.com, the bright line separating content hosts from content developers has become more blurry. Operators of social networking websites must now be especially careful to weigh their potential liability as content providers against the commercial need for the websites to collect and process information in a manner to make the websites attractive and useful to users. The best advice? Use great caution. Given the massive membership of these websites, the wrong information model could potentially open the floodgates to newly empowered plaintiffs.

Marc S. Friedman is Chair of the Intellectual Property Practice Group at Sills Cummis & Gross P.C. and practices in the Firm's New York City office. He is in The International Who's Who in E-commerce & Internet Law. Monique Cofer-Delbridge and Eric D. Wong are Associates in the Firm's Litigation Practice Group and practice primarily in the Newark, NJ office. The views and opinions expressed in this article are those of the authors and do not necessarily reflect those of Sills Cummis & Gross P.C.

Please email the authors at mfriedman@sillscummis.com, mcofer@sillscummis.com or ewong@sillscummis.comwith questions about this article.