Washington Journal of Law, Technology & Arts


Jeffrey R. Doty


In Fair Housing Council of San Fernando Valley v. Roommates.com, the United States Court of Appeals for the Ninth Circuit held that a Web site operator loses the immunity granted by section 230 of the Communications Decency Act by materially contributing to the alleged illegality of its third-party content. Subsequent case law seems to reflect two different standards for determining when this “underlying illegality” test is satisfied. Most courts have adopted a narrow reading of Roommates.com, denying immunity only when a Web site has explicitly requested illegal content. In NPS LLC v. StubHub, Inc., however, a Massachusetts district court appears to adopt a broader inducement-based standard that would impose liability upon a much wider range of conduct. This Article examines the recent case law in order to identify the contours of these differing theories for negating § 230 immunity.

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