CDA - "conduit" status further clarified

In Fair Housing Council v. Roomates.com, the U.S. Court of Appeals for the 9^th Circuit has further clarified the meaning of the term “publisher or speaker” or the “conduit immunity” status of Internet businesses.  In this case, Roomates.com was alleged to have created a questionnaire that collected information that is prohibited under state and federal fair housing laws.  Roomates.com argued that it qualified for conduit immunity under the Communications Decency Act since it was merely an interactive computer service, rather than a publisher or speaker, who would be liable for the content of information they published (or spoke).  Fair Housing Council argued that Roomates.com fell outside of this category, and was a publisher, of the discriminatory questionnaire, since it developed the questionnaire.  The court agreed with the Fair Housing Council.

The court determined that Roomates.com created the questions and choice of answers used in the questionnaire, and as a result, under the CDA was a publisher of the questionnaire, and not a mere conduit through which the questionnaire was distributed.  The court focused on the creation and development of the questionnaire as the key activity that moved Roomates.com from a conduit to a publisher.  By selecting the questions to be asked, and by actually developing the questionnaire itself, Roomates.com became a publisher.  The court further reasoned that the CDA does not provide immunity for an entity that facilitates a violation of the law by actively soliciting and classifying the information that forms the violation of the law.

What does this mean for hosts?  One of the statements in the opinion is very important for hosts to remember:  hosts can be both a conduit and a publisher under the CDA.  So in the Roomates.com example, unguided postings merely disseminated by Roomates.com would be within the conduit exception.  Developing a method for classifying these ads, and displaying them, in a manner that violated fair housing laws, made Roomates.com a publisher for claims made based on that activity. 

This is an important distinction for hosts to remember.  The fact that you are a host does not automatically grant you conduit status under the CDA.  Rather, it is the activities in which you are engaged that create the circumstances according to which CDA status is accorded.