Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC: Roommate Locator Website FHA Lawsuit Reinstated

A federal appellate court has considered whether an apartment finding website violated the Fair Housing Act (“FHA”) by obtaining housing preferences from its users. Click here to read the earlier decision in this case.

Roommate.com, LLC (“Website”) operates a website which serves as a roommate locater service. The Website allows users to post notices about residences that they have available for leasing and also allows users to post notices about residences they are willing to share. Basic membership is free and allows the user to create a personal profile, search the database, and send messages to other users. Membership requires the authoring of a personal profile, which is based on the user’s answers to a series of questions about topics such as the user’s age, gender, sexual orientation, and number of children. Under its terms of service, the Website states that it does not screen posts on the site and that users are “entirely responsible” for the content they post.

The Fair Housing Council of San Fernando Valley and the Fair Housing Council of San Diego (collectively, “Councils”) filed a lawsuit against the Website. The lawsuit alleged violations of the FHA as well as violations of California state laws. The Councils alleged that the Website violated the FHA in three different ways. First, it allowed users to choose nicknames for themselves which demonstrated a discriminatory intent, such as Whiteboy or Blackguy. Second, the Website allowed users to write essays in which users set forth discriminatory preferences, such as “looking for straight Christian male.” Finally, the Councils argued that the Website’s questionnaire required users to provide information about their gender, age, sexual orientation, occupation, and familial status. The Website argued that it was shielded from immunity by the Communications Decency Act (“CDA”). The trial court agreed with the Website, and ruled in its favor. The Councils appealed.

The United States Court of Appeals for the Ninth Circuit partially reversed the trial court and remanded the case back to the trial court for further proceedings. The court considered whether the CDA shielded the Website from the Council’s lawsuit. The CDA contains a provision which states that “[n]o 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.” The CDA clarifies its effect on other laws by specifically exempting its effect on federal criminal laws, intellectual property laws, and certain federal privacy laws. The CDA does not mention the FHA.

The court stated that if the Website simply published materials prepared by third parties, then it was protected from liability by the CDA. However, if the Website acted as a “content provider”, then it would be liable. A “content provider” is defined as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet”.

Looking at the allegations made by the Councils, the court found that the questionnaire used by the Website to solicit information from site visitors was created by the Website and so it was a content provider for these questionnaires. Because the Website qualified as a content provider for the questionnaire used on its site, the court sent these allegations back to the trial for further consideration on whether or not the questionnaire violated the FHA.

Next, the court considered whether the Website had any liability for publishing its members’ profiles. The Website argued that it was protected based on a prior decision by the court where a dating website was protected from liability by the CDA when it published a false user profile created by a third party which contained defamatory statements. The court distinguished that case because the dating website had no role in creating the user profile, whereas here the Website did have a role in directing its users to compatible user profiles. For example, a user who only wanted a female roommate would only see profiles of users meeting that criteria. Because the Website played a role in the providing of profile information to users, the court ruled that the CDA did not protect the Website in its publishing of members’ profiles and so also remanded these allegations back to the trial court for further consideration on whether these allegations violated the FHA.

Finally, the court considered whether the CDA protected the Website from liability for statements made by users in the “Additional Comments” section of their profiles. This part of the form is a blank box which allows users to personalize their profiles, and also was the part of the website where many of the comments that the Councils alleged violated the FHA appeared. The Website had no role in the creation of the “Additional Comments” section by users and all of the comments were made by the users themselves. The court ruled that the Website was not a content provider for that part of its site and so was protected by the CDA. Thus, the court affirmed the trial court’s ruling that the CDA protected the Website from liability for the “Additional Comments” section of its site.

Fair Hous. Council of San Fernando Valley v. Roommate.com, LLC, No. 04-56916, 04-57173, 2007 WL 1412650 (9th Cir. May 15, 2007). [This is a citation to a Westlaw document. Westlaw is a subscription, online legal research service. If an official reporter citation should become available for this case, the citation will be updated to reflect this information].

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