No. 13-5946
Jones v. Dirty World Entm’t Recordings, et al.
Page 17
the development of this content, which comes entirely from subscribers and is
passively displayed by Roommate. Without reviewing every essay, Roommate
would have no way to distinguish unlawful discriminatory preferences from
perfectly legitimate statements. Nor can there be any doubt that this information
was tendered to Roommate for publication online. This is precisely the kind of
situation for which section 230 was designed to provide immunity.
Id. at 1173−74 (internal citation omitted). Furthermore, the court rejected the argument made by
the fair housing councils that the website developed the allegedly illegal content displayed in the
additional comments section because the website encouraged the submission of discriminatory
preferences.
Id. at 1174.
The court reasoned that “[t]he fact that Roommate encourages
subscribers to provide something in response to the prompt is not enough to make it a
‘develop[er]’ of the information.” Id. (second alteration in original). Because “Roommate does
not tell subscribers what kind of information they should or must include as ‘Additional
Comments,’ and certainly does not encourage or enhance any discriminatory content created by
users,” the court held that the operation of the additional comments section did not materially
contribute to the alleged unlawfulness of the content displayed on the website’s comments
section. Id.
The material contribution test has been adopted and applied by other circuits, with
instructive effect.
Compare Nemet, 591 F.3d at 257−58 (holding that a website did not
contribute to alleged illegality), with Accusearch, 570 F.3d at 1200−01 (holding that a website
did contribute to alleged illegality). In Nemet, Nemet, the owner of a Chevrolet dealership, sued
Consumeraffairs.com, a website allowing users to comment on the quality of goods and services,
after various allegedly tortious, third-party posts appeared on the website relating to automobiles
sold or serviced by him. 591 F.3d at 252. The website claimed immunity under the CDA.
Nemet responded that the website was, in fact, an information content provider under
§ 230(f)(3), and was thus liable as a co-developer, because of the “structure and design of its
website” and because “Consumeraffiars.com solicit[ed] its customers’ complaints [and] steered
them into specific categor[ies].” Id. at 256 (first and third alterations in original) (quotation
marks omitted). The panel affirmed the district court’s grant of the website’s motion to dismiss
because “[e]ven accepting as true all of the facts Nemet pled as to Consumeraffairs.com’s
liability for the structure and design of its website, the amended complaint does not show, or
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