For the London Free Press – April 21, 2008

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A recent court of appeal ruling found that Craigslist — a popular venue which provides an electronic forum for those who want to buy, sell or rent housing or other goods and services — should be treated like an Internet service provider and should not be liable for material posted by third parties.

That decision is sensible, and should be the norm for sites that provide for content added by others. That is similar to the concept that phone companies and Internet service providers should not be liable for their customers’ messages and conversations.

Craigslist came under scrutiny when the Chicago Lawyer’s Committee for Civil Rights sued Craigslist, arguing the Internet classified ads company violated the Fair Housing Act by publishing discriminatory housing posting.

Under American law, section 360(4)(a) of the Fair Housing Act forbids discrimination on account of race, religion, sex, or family status when selling or renting housing. This prohibition is accompanied by a ban on ads that state a preference with respect to any of the protected classes, essentially making it illegal to print or publish any type of notice or ad for the sale or rental of a dwelling that indicates a preference for race, colour, religion, sex, handicap, familial status or national origin.

The Chicago Lawyer’s Committee noted offensive comments in notices for the sale or rental of homes on Craigslist, including comments like “no minorities” or “no children.”

The matter was recently appealed to the U.S. Seventh Circuit Court of Appeal. The key issue in the appeal was whether the site could be liable for allowing customers to post discriminatory housing ads. The lower court decision was upheld. The court found Craigslist should be treated like an Internet service provider and should not be liable for materials posted by third parties.

The judge considered whether Craigslist should hire staff to vet postings, but concluded this would be expensive and futile. Vetting would result in posting delays that defeat the purpose of Craigslist.

Each month, more than 30 million notices are posted to the system. Fewer than 30 people, all based in California, operate the system that offers classifieds in 450 cities. It would be necessary to add staff, indirectly increasing consumer costs, to handle the sort of editorial review the committee demanded.

In addition, whether something is inappropriate or offensive is a judgment call.

One of the ads cited contained the phrase, “Catholic church and beautiful Buddhist temple within one block,” which the committee viewed as a signal of religious preference.

Craigslist viewed it as an objective description of a neighborhood that would help people zero in on properties attractive to them. Craigslist noted it is no more exclusionary than assuming an ad reading “elementary school within five minutes” would indicate a landlord would refuse to rent to childless couples. It is not reasonable to expect such companies to exercise something akin to judicial oversight.