No. 13-5946
Jones v. Dirty World Entm’t Recordings, et al.
Page 16
Roommates required information about protected characteristics and engineered its search and
email systems to limit access to housing listings based on those protected characteristics, the
court held that the website materially contributed to the alleged illegality of hiding certain
listings. See id. at 1166−69, 1172.
The court also gave specific examples of the application of the material contribution test
for a website that solicits, edits, and displays content originating from third parties (i.e., a website
akin to www.TheDirty.com). For example:
A website operator who edits user-created content—such as by correcting
spelling, removing obscenity or trimming for length—retains his immunity for
any illegality in the user-created content, provided that the edits are unrelated to
the illegality. However, a website operator who edits in a manner that contributes
to the alleged illegality—such as by removing the word “not” from a user’s
message reading “[Name] did not steal the artwork” in order to transform an
innocent message into a libelous one—is directly involved in the alleged illegality
and thus not immune.
Id. at 1169 (alteration in original); see also Batzel, 333 F.3d at 1035 (holding that an editor of an
email newsletter who received and published allegedly actionable information, adding a short
headnote, was immune under § 230 because an editor’s changes to the length and spelling of
third-party content do not contribute to the libelousness of the message). The Roommates court
further explained:
And any activity that can be boiled down to deciding whether to exclude material
that third parties seek to post online is perforce immune under section 230. But if
the editor publishes material that he does not believe was tendered to him for
posting online, then he is the one making the affirmative decision to publish, and
so he contributes materially to its allegedly unlawful dissemination. He is thus
properly deemed a developer and not entitled to CDA immunity.
521 F.3d at 1170−71 (internal citations omitted).
Accordingly, the Roommates court held that § 230 barred the fair housing councils’
claims grounded on the allegedly discriminatory statements displayed through Roommate’s
operation of the “additional comments” section of its website. Id. at 1173. The court explained:
Roommate publishes these comments as written. It does not provide any specific
guidance as to what the essay should contain, nor does it urge subscribers to input
discriminatory preferences. Roommate is not responsible, in whole or in part, for
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