Mariwyn Evans is a former REALTOR® Magazine writer and editor, covering both residential brokerage and commercial real estate topics.
Profile Info May Violate Fair Housing
Sites requiring potentially discriminating information from users could violate fair housing laws.
August 1, 2008
A Web site that connects potential roommates is not entitled to immunity under the Communications Decency Act because a profile form created by the company requires users to provide personal information that might be used to discriminate, a federal appeals court has ruled.
The site, Roommates.com, offers a free roommate locator service that allows participants to post notices about housing to share and to review profiles of registered users and e-mail them. The profile form asks for information such as gender, race, and familial status and allows visitors to search by those criteria.
The site requires all users to complete this form and share this potentially discriminatory information. As a result, the appeals court decided that the Web site was a developer of this information and so could not claim immunity from the Fair Housing Act under the CDA. This law contains a provision that shields online publishers from liability for content posted on their sites by third parties. Because Roommates.com participated in the development of the site’s content by creating the form and requiring users to complete it, it cannot claim immunity for those postings.
However, in the same ruling, the appeals court did decide that the site was entitled to CDA immunity for any discriminatory remarks made in the comments field of the form because the site does not require users to complete this section and publishes any comments made as written.
This CDA exemption was also the basis for the decision by another federal circuit court in favor of Craigslist.org, the classified advertising Web site. In this 2008 reaffirmation of an earlier trial court ruling, a 7th Circuit federal appeals court found that Craigslist could claim CDA immunity because it simply listed information provided by others without editing the information, the same process used in the comments field in the Roommates case.
Both courts also noted that the Web sites could still perform minor editing controls of their content, such as screening for offensive language, without losing their CDA immunity.
The rulings in both cases affirm the notion that this CDA immunity might also apply to the comments section in a property listing in an MLS. However, no case has specifically addressed this application.
Fair Housing Council of San Fernando Valley v. Roommates.com LLC , U.S. Court of Appeals, 9th Circuit, 2008