Court says Web site not immune under Section 230

A federal court of appeals ruling limiting the scope of protection under the Communications Decency Act will not drastically affect online journalism, but the future could still be uncertain, according to lawyers who wrote an amicus brief on behalf of the media.

A divided U.S. Court of Appeals in San Francisco (9th Cir.) held that that the Web site Roommates.com is not immune under section 230 of the CDA, which immunizes Web publishers from liability arising from third-party content, because it created too much of its own problematic content, which could be considered discriminatory.

“Not only does Roommate ask these questions, Roommate makes answering the discriminatory questions a condition of doing business,” Kozinski wrote for the 8-3 majority. “This is no different from a real estate broker in real life saying, ‘Tell me whether you’re Jewish or you can find yourself another broker.’ ”

Although Roommates.com cannot be held liable for unlawful information created by its users, it can be charged for content that it provides or develops through interactive designs like drop-down menus.

In dissent, Judge M. Margaret McKeown said grouping Web publishers with users who access their site creates an "unprecedented" spread of liability for those sites. "Instead of the ‘robust’ immunity envisioned by Congress, interactive service providers are left scratching their heads and wondering where immunity ends and liability begins," McKeown wrote.

Bruce Johnson, an attorney at Davis Wright Tremaine in Seattle who helped write an amicus brief on behalf of more than 20 newspapers and press organizations, said a brief including only media organizations was necessary to separate online news content from Web sites like Roommates.com.

“The fact that this was a decision that might limit the scope of section 230 meant it was very important to remind the court that there are other types of communications that really need protection, even if Roommates.com might be susceptible to liability in this situation,” Johnson said. “It is particularly important as journalism moves more and more to the web.”

Johnson said courts will need to examine the section 230 with more diligence in the future as journalistic Web sites increasingly take advantage of interactive technology.

“I can see information-gathering heading in that direction and journalism becoming more interactive,” Johnson said. “Therefore, we may have to look closer at this type of ruling in the future.”

Tom Burke, an attorney at the San Francisco office of Davis, Wright, Tremaine LLP who also took part in writing the amicus brief, said mainstream media Web sites could actually benefit from this decision.

“For the most mainline newsgathering Web sites, section 230 is robust, broad protection,” Burke said. “And this decision actually supports this view.”