Wednesday, May 16, 2007

Can structured text...

... preclude immunity under the Communications Decency Act? The Ninth Circuit (quickly becoming the CDA clearinghouse circuit) seems to think so.
As we previously explained, an entity cannot qualify for CDA immunity when it is “responsible, in whole or in part, for the creation or development of [the] information” at issue. 47 U.S.C. § 230(c), (f)(3); see also Batzel, 333 F.3d at 1031. Roommate is “responsible” for these questionnaires because it “creat[ed] or develop[ed]” the forms and answer choices. As a result, Roommate is a content provider of these questionnaires and does not qualify for CDA immunity for their publication.

In this case, the structured text was in the form of pre-defined content that a user selects in response to a questionnaire. created the questionnaire. The questionnaire contained questions about living preferences that referred to things like sex and sexual orientation. Arguably, those characteristics are not appropriate criteria under the Fair Housing Act (not an expert, nor do I really know anything about the law).

Too harsh? Maybe. Right decision? Probably.

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