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Designer Skin LLC v. S & L Vitamins, Inc., et al.
Unauthorized internet reseller of plaintiff’s products is not guilty of trademark infringement, and does not cause actionable initial interest confusion, by using plaintiff’s trademarks in meta tags of website at which plaintiff’s and its competitors’ products are sold, and in...

Chicago Lawyers’ Committee For Civil Rights Under Law Inc. v. Craigslist, Inc.

No. 07-1101 (7th Cir., March 14, 2008)

Communications Decency Act Bars Craigslist From Being Held Liable For Publication Of Third Party Ads

Affirming the District Court below, the Seventh Circuit holds that Craigslist cannot be held liable for violating the Fair Housing Act as a result of its online publication of discriminatory housing ads authored by third parties. To hold Craigslist liable for such conduct would require it to be treated as a ‘publisher’ of these advertisements, which is prohibited by Section 230(c)(1) of the Communications Decency Act.  As a result, the Seventh Circuit affirms the District Court’s grant of summary judgment, dismissing plaintiff’s Fair Housing Act claims against Craigslist.

Craigslist Publishes Real Estate Ads, Authored By Third Parties, That Violate The Fair Housing Act

Craigslist, among other things, provides an online forum at which those wishing to rent real estate, can post advertisements seeking tenants.  Among the many real estate listings posted by third party users of Craigslist’s service, were numerous advertisements that violated the Fair Housing Act, 42 U.S.C. Section 3604(a).  This Act prohibits advertisements that state a preference, for or against, renters of any protected class.

The FHA makes it illegal to “publish” such advertisements.  Claiming that Craigslist violated the FHA by making such advertisements available online, plaintiff – the Chicago Lawyers’ Committee for Civil Rights Under Law Inc. - commenced this suit.

Communications Decency Act Bars Craigslist From Being Treated As A Publisher Of Third Party Ads At Issue

Craigslist moved for summary judgment, arguing that plaintiff’s claims were barred by application of the Communications Decency Act (“CDA”).  The District Court agreed, and dismissed plaintiff’s suit.  This holding was affirmed by the Seventh Circuit on appeal.

To hold Craigslist liable for the advertisements at issue would require that it be treated as the publisher of this content, which was prohibited by the CDA.  Said the Seventh Circuit:

What Section 230(c)(1) says is that an online information system must not “be treated as the publisher or speaker of any information provided by” someone else.  Yet only in that capacity as publisher could Craigslist be liable under Section 3604(c).  It is not the author of the ads and could not be treated as the 'speaker’ of the posters’ words, given Section 230(a)(1).  … 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 assemble a list of names to send to the Attorney General for prosecution.  But given Section 230(c)(1) it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination.

7th Circuit’s Narrow Reading Of Communications Decency Act

In reaching this result, Chief Judge Easterbrook reaffirmed the Seventh Circuit’s narrow reading of section 230(c) of the Communications Decency Act, first announced in Doe v. GTE, 347 F.3d 655 (3rd Cir. 2003).  As explained by Judge Easterbrook, Section 230(c)(1) should not be read as a broad grant of immunity to information service providers.  Rather, it is a ‘definitional clause’ which does what it says – prohibits information service providers from being treated as publishers or speakers of information provided by someone else.  Said the Seventh Circuit: “section 230(c) as a whole cannot be understood as a general prohibition of civil liability for web-site operators and other online content hosts.”

To hold otherwise, noted Judge Easterbrook, would defeat the purpose of Section 230(c), which was to encourage information service providers to screen the content found on their sites.  Reading 230(c)(1) as a broad grant of immunity would defeat that purpose – and encourage just the opposite – as it would provide immunity both for taking and not taking action to screen third party information posted on a site.  Because screening costs money, the likely result, posited the Court, would be that information service providers would elect not to screen, thereby defeating the purpose of the CDA.

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