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Net giants argue for user-generation immunity

Surely, we're not responsible for our users?

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A coalition of the biggest names in internet publishing is campaigning for the reversal of a US court ruling that leaves some publishers liable for comments made by internet users. Google, Microsoft, Facebook and Yahoo! have all petitioned the court.

A Californian court ruled (pdf) earlier this year that flat-share matching service Roommate.com could not claim immunity from liability for comments made by its users. The internet giants and some lobby groups are attempting to help overturn that judgment.

Section 230 of the US Communications and Decency Act (CDA) grants immunity to information service providers in relation to material published by its users. The court, though, ruled that Roommate.com was too involved in the actual production of material to qualify for the exemption.

Roommate.com was sued by the Fair Housing Councils of San Fernando Valley and San Diego, which said that questionnaires to be filled out indicated an intention to make a selection based on discrimination, and allows others to make a selection based on discrimination.

Those questionnaires asked people to indicate if they are willing to share with men, women, gay people or children, amongst other things. It also contained a comments box in which some people expressed preferences which could breach fair housing laws.

"Some state that they 'Pref[er] white Male roommates', while others declare that they are 'NOT looking for black Muslims'," said court documents.

The Fair Housing Councils argued that Roommate.com bore some responsibility for the material because it had formulated the questionnaires and it published the results online and in email newsletters,

The court had to decide whether this activity meant that Roommate.com was partly or wholly responsible for the content created through its questionnaires. If it was, it would lose immunity under the CDA.

The court first ruled that it was not, and that the site had immunity. A three-judge panel of the US Court of Appeals for the Ninth Circuit overturned that decision. A full hearing of the whole Appeals Court, called an en banc hearing, has been granted in the controversial case.

The technology leaders have submitted a brief (pdf) to the court in support of Roommate.com for the full en banc hearing of the Court of Appeals.

The companies argue that the existing decision undermines the broad protections offered by the CDA and upheld in other cases. "[The decision] would turn Section 230(c)(1) on its head, relegating it to protect only relatively simple, rudimentary types of online services while exposing to potentially crushing liability the sorts of robust, innovative services that Congress wanted to encourage," said the brief.

It was prepared by the companies and digital rights lobby group the Center for Democracy and Technology (CDT).

The brief argues that the protections at issue are vital to the development of crucial online services. "[We] cannot emphasise enough the degree to which the protection afforded by Section 230(c)(1), as consistently interpreted by courts across the country over the past decade, has played a critical role in enabling the development of interactive services that both empower users and encourage innovation and self-regulation," it said.

Copyright © 2007, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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