Circuit Court Ditches Ruling Opening Up To Blame For Ads Posted By Users

from the let's-rethink-this-a-moment dept

Earlier this year, plenty of people were quite surprised by a ruling of the 9th Circuit that seemed to go against what almost every other court had said about the safe harbors provided to internet service providers for the actions of their users under section 230 of the Communications Decency Act. The case involved the website, which allows people (not surprisingly) to put up ads looking for roommates. The problem (according to the lawsuit) is that some people posting roommate ads included requests that could potentially violate the Fair Housing Act. Where the ruling got tricky was that it basically said section 230 protections existed only where structured data wasn’t collected. However since offered both pulldown boxes and allowed users to search on certain characteristics, it was no longer protected by section 230. But this potentially opened up a ton of problems and had a variety of legal experts scratching their heads. So, it’s no surprise that they’re happy to see the 9th Circuit now toss that original ruling out, to be reheard by an 11 judge panel. No matter when that happens, the original ruling can no longer be used as a precedent. This is a good thing, as the safe harbors protecting service providers from the actions of their users is certainly a good thing — and the net result if this ruling did stand is that fewer sites would be willing to accept any kind of structured data, for fear of losing their protection. Also, considering how confused various legal experts were after the original ruling, you have to figure that it’s at least a good idea to take a second look and rethink or, at the very least, clarify the original ruling.

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Comments on “Circuit Court Ditches Ruling Opening Up To Blame For Ads Posted By Users”

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Mike (profile) says:

Re: Re:

If a paper can’t accept ads that violate the FHA, why should Internet properties?

A newspaper has limited inventory, and therefore reviews all of the ads before they are submitted and posted. Since these internet sites do not, it is quite different. It is not the equivalent of a newspaper, but more like a bulletin board, where anyone can post what they want.

So it’s quite different.

Mike (profile) says:

Re: Re:

Google’s Adwords has unlimited inventory and seems to review the ads placed there (as proven by their refusal of an ad attacking so why should others get off the hook for content that breaks the law?

Actually you are wrong. Google does not review the ads placed there. You might want to read the details on these things before you say things like the above. Google *does* allow companies with trademarks to ask that their trademarks not be used in ads, and then creates an automated whitelist.

So, no, they were not reviewing the ads.

Even if Google was, that doesn’t matter with the situation at hand. The question never was whether or not the site *should* review the ads. That’s a business decision the site has to make on its own. The question was if they do NOT review the ads, are they still liable for them. In other words, if made the business decision to review the ads (as a newspaper does), then it likely would be seen as liable. However, if it simply acts as a bulletin board, then it is not.

Whether or not others review their ads is meaningless to the case.

RandomThoughts (user link) says:

Mike, actually, I am not wrong. Google said themselves that their “filter” rejected the ad, that it was an automated program that did so. Of course, reports were that the ad ran for 3 days and was then pulled down, so who knows what the actual truth is. (And shouldn’t you be shouting about fair use here?)

So business decisions trump the law? Really? You can put anything you want up on Anything?

Business models can’t ignore the law, but you must be comfortable with it, as your views on copyright and patent sometimes ignore economic laws.

I don’t think so. Of course,

Mike (profile) says:

Re: Re:

And shouldn’t you be shouting about fair use here?

Huh? What does fair use have to do with anything here?

So business decisions trump the law? Really? You can put anything you want up on Anything?

I didn’t say business decisions trump the law. I said that the business decisions determine whether or not the law applies. That’s quite different and you know that.

Business models can’t ignore the law, but you must be comfortable with it, as your views on copyright and patent sometimes ignore economic laws.

Again, I never said that business models ignore laws. I said that the business model decisions determine which laws apply.

For example, if you open up a shop that tries to sell liquor, then liquor licenses apply. If you decide not to, then liquor laws don’t matter. Same thing here. If you chose to have your business be as a bulletin board, then you’re not liable for post content. If you do, then you are. This isn’t complicated.

Also, I’d like to see you point out a specific “economic law” (which is a totally different thing than we’re discussing here) my views on copyright and patents “ignore.” I keep asking people to point them out and no one has done so yet. So if you succeed, you’d be the first.

Tom (profile) says:

The same problem with peer to peer lending

I’ve wondered about this issue with peer to peer lending. There are lending laws that prevent discrimination. With peer to peer lending you choose who you are lending to. Some behavior promoted by the peer to peer lending companies could potentially fall into this category. Here are some thoughts on the issue:

Do Prosper lenders discriminate?

What do you think?

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