Briefing

Roomates.com operates an online roommate matching Web site that helps individuals find roommates based on descriptions of themselves and their roommate preferences. To become members of Roomate, users respond to a series of online questionnaires by choosing from answers in drop-down and select-a-box menus. Users must disclose information about themselves and their roommate preferences based on such characteristics as age, sex and whether children will live in the household. They can then provide "Additional Comments" through an open-ended essay prompt. Roomate's free membership allows users to create personal profiles, search lists of compatible roommates, and send "roommail" messages to other members. The Fair Housing Councils of San Fernando Valley and San Diego filed suit in federal district court against Roomates.com, claiming that Roomates.com violated the Fair Housing Act ("FHA"), which prohibits discrimination in housing, alleging that because the questionnaire asks for demographic information, the Web site posts material that could enable site users to discriminate against others.

Roomates.com claimed it was immune from such claims under the Communications Decency Act ("CDA"), which provides immunity for interactive computer service providers. However, the Ninth Circuit held that while Roomates.com was immune under the CDA so long as it merely published information provided by its members, it was not immune for publishing materials for which it was an information content provider, and Roomates.com had become a content provider of certain information because it was responsible for the questionnaires it had created and developed that asked potential customers about themselves, their preferences (e.g. living with children, living with people of various sexual orientations), arguably in violation of the Fair Housing Act.

TIP: While the CDA does provide protection for Web site owners against third-party content posted to its site, a Web site must be very careful about participating in the creation of consumer content posted to its site, as such participation may eliminate the site's immunity under the CDA.