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November 2009

SPECIAL ALERT

Creating Categories Does Not Destroy CDA Immunity

Thomas Dart, a sheriff in Cook County, Illinois, filed suit against online classified advertiser Craigslist, Inc. in the U.S. District Court for the Northern District of Illinois for creating a public nuisance by facilitating prostitution.  Dart sought an injunction to prohibit Craigslist, Inc. from continuing to facilitate prostitution and to recover expenses and time incurred by his department in policing prostitution facilitated by Craigslist, Inc. as well as compensatory and punitive damages.  Craigslist, Inc. moved for summary judgment on the grounds that it is an interactive computer service shielded by the Communications Decency Act (CDA), which states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”  47 U.S.C. § 230(c)(1). 

Dart attempted to distinguish his case from a previous Seventh Circuit decision, Chicago Lawyer’s Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., in which the court found that Craigslist, Inc. was immune from liability under the CDA for discriminatory housing ads that violated the Fair Housing Act.  Dart argued that Craigslist, Inc. did not qualify for immunity under the CDA because it encouraged the illegal ads by creating categories with titles such as “erotic” and “adult,” and cited the Ninth Circuit’s decision in Fair Housing Council of San Fernando Valley v. Roomates.com.  In Roomates.com, the Ninth Circuit denied Roomates.com immunity under the CDA for publishing discriminatory ads because the web site required each subscriber to disclose personal information, including sex, sexual orientation, and whether they will bring children into their household in violation of the Fair Housing Act via drop-down lists created by the web site.  The court disagreed with Dart and granted summary judgment to Craigslist.com finding that “The phrase ‘adult,’ even in conjunction with ‘services’ is not unlawful in itself nor does it necessarily call for unlawful conduct.”

Tip: Companies will likely be immune from liability under the CDA for creating categories for content posted on their web sites by others as long as the category name does not necessarily call for content or conduct that is illegal.

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