Monday, March 17, 2008

Craigslist Wins Discrimination Suit: Why the Court Got it Right...

We've heard the ancient adage since childhood: Don't kill the messenger. Increasingly, the courts are upholding that principle in cyberspace as well.

Here's the story. Two years ago, some people posted real estate ads on Craiglist that were discriminatory - listing apartments for rent "seeking white tenants only". In meatspace, this type of requirement is illegal under the Fair Housing Act of 1968, which deems it illegal "to publish ads excluding tenants because of race, gender, marital status, national origin and religion". But the question before the courts was whether Craiglist should be held liable for providing the forum where discriminatory postings could be published.

The answer is a resounding "No". According to David Kravets, a federal appeals court dismissed the lawsuit against Craigslist on Friday.

A few observations about the ruling:

1) The court ruled that "Craigslist should be treated like an internet service provider and hence is not liable for the postings of third parties". Think about that for a second. This signals a fundamental shift in cultural expectations, as websites are now legally recognized as places where people connect, rather than as actual publishers of information themselves. This ruling is therefore extremely significant as a precedent dealing with all Web 2.0 sites that are based on user-generated content. YouTube, Wikipedia, MySpace, and the rest of them ought to be throwing a party.

2) As posted in a comment by a user named Moguta, "Craigslist's housing section has pretty prominent notices that discriminating is illegal, and allows people to flag posts that violate the Fair Housing Act. So Craigslist certainly did its part to help assure its ads are compliant". Sure makes sense to me.

3) The ruling concludes that avenues still exist for legal recourse in such discrimination practices online. Lawyers "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... it cannot sue the messenger just because the message reveals a third party’s plan to engage in unlawful discrimination."

So the court is making it clear that discriminatory postings online are certainly still to be considered illegal; it's just that the target of the suit should not be the provider of the forum.

Ultimately, the appellate court got it right. If we are to have an interactive Web, then those who provide our forums cannot be held liable for every piece of content posted by its users. Without question, they still have some responsibilities, such as legal disclosures and mechanisms for protecting the safety of individuals and children, but at its core, the issue is still one of people and individuals who ought to be held accountable for their own actions. Don't kill the messenger, indeed.


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