Online classified and community site craigslist is just a "messenger" and is not liable for discriminatory ads posted on the site by its users, a three-judge panel for the 7th Circuit U.S. Court of Appeals concluded in a ruling released Friday.
The judges upheld a November 2006 ruling by a U.S. District Court, which found that craigslist is considered an "interactive computer service" under federal law, and is not a publisher.
In February 2006, the Chicago Lawyers’ Committee for Civil Rights Under Law sued craigslist for a series of rental housing ads containing discriminatory language that appeared on the site.
The lawyers’ group, a nonprofit entity that advocates for affordable housing and fair-housing law compliance, found examples of discriminatory language posted at the site during 2005 such as, "no minorities," "no children," and "clean, godly Christian male."
At issue in the lawsuit and appeal was whether the U.S. Communications Decency Act, passed in 1996, offers protections for online companies like craigslist when users post illegal content.
Stephen D. Libowsky, who represented the Chicago lawyers’ group, had argued in a hearing last month that Congress did not intend to "totally immunize Internet service providers" for offensive content and that Congress intended "to encourage and incentivize Internet service providers to block and screen offensive material" when it passed the Communications Decency Act.
Craigslist, meanwhile, had argued that provisions in that act provide "broad immunity from liability for unlawful third-party content."
But the Court of Appeals panel found that the relevant section in the legislation does not mention immunity. The judges referenced an earlier decision, which found that the federal act "never requires (Internet service providers) to filter offensive content, and thus … would not preempt state laws or common-law doctrines that induce or require ISPs to protect the interests of third parties."
ISPs can be liable for contributing to infringement, for example, "if their system is designed to help people steal music or other material in copyright," as in the case against file-sharing site Grokster Ltd.
In that case, the federal act did not grant "comprehensive immunity from civil liability for content provided by a third party."
But the judges found that craigslist does not induce anyone "to post any particular listing or express a preference for discrimination." Craigslist was no more responsible for the discriminatory postings than a phone company, courier service, or the computer manufacturers that built the machines used to transmit the discriminatory posts, the judges found.
"Using the remarkably candid postings on craigslist, the lawyers’ committee can identify many targets to investigate. It can dispatch testers and collect damages from any landlord or owner who engages in discrimination. It can assembly a list of names and send (them) to the attorney general for prosecution.
But under the provisions of the federal Communications Decency Act, "it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination," they concluded.
Craigslist officials could not be reached for comment Friday about the decision.
Libowsky said Friday that it’s too early to know whether the lawyers’ committee will ask all of the judges in the 7th Circuit Court of Appeals to reconsider the decision by the three-judge panel.
"We are working our way through the various parts of the decision to see where, if anywhere, we go from here," he said, adding that the committee is "very pleased" that the panel rejected craigslist’s "blanket immunity" position in the case.
The decision also makes it clear that people who post discriminatory ads on such online sites "can’t run and hide behind some Web site," and the opinion gives support for sites to give up information about users who post discriminatory ads, "whether they do it voluntarily or through court order."
He also noted that craigslist had made certain changes related to housing posts at the site in an effort to thwart discriminatory postings, whether the threat of the lawyers’ group’s lawsuit or the actual lawsuit prompted those changes.
It remains to be seen, he also said, whether other sites will choose to take steps to discourage discriminatory ads.
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