Federal and state laws prohibit discrimination, harassment or retaliation in the housing market, workplace, and when a business establishment provides goods or services. But do those statutory schemes apply or have any force in cyberspace?
Here in Northern California, one online group inadvertently discovered that the courts have not yet answered that question. The circumstances that brought the issue to the forefront also caused an online forum designed for and utilized by mothers to implode.
An online forum owned, operated by, and designed for mothers had, for two years, been the site of discussions about parenting, play dates, intimate thoughts about husbands, breast feeding, post partum depression, and sex among its 361 members. Until, that is, five words were posted on that venue: “Hi all, I’m a dad.”
The uproar that followed was initially characterized by fairly benign comments like “I’m pretty uncomfortable with this” and admissions from some of the members that they wanted to welcome a male member, but were leery. “Not at the fact that you can read my personal ‘girly’ posts but at the fact that I have no idea who you are and could be some kind of pervert for all I know.”
However, the dialogue turned ugly. The forum owner admitted that she and the moderators were “very embarrassed by the way it went,” with many members exhibiting behavior that was “more aggressive than the type of attitude that we promise on our site.”
In fact, the discussion became so heated that the forum was closed. Undaunted, some of the former members launched a private discussion board and continued the conversation. There, some women complain that they lost a safe, welcoming place where they could find companionship, solace, and advice from other women. They argue that opening such an online forum to male participants defeats its purpose and robs them of the opportunity to express their thoughts and feelings with women who share similar life experiences and emotions.
Others, however, were appalled that a segment of their membership engaged in hate speech directed toward the new male member. “The bottom line for me is not being able to stand for any kind of prejudice . . . and that is what this is,” said one female participant.
Another woman queried whether online behavioral standards should be any different than in-person guidelines. “If we were all having a playdate and the guy joined in with his daughter would you confront him that way verbally? I doubt it,” she wrote.
The internet is still, in many ways, an untamed legal frontier. Those who set up private forums accessible only to members have the power to exclude persons who do not meet their criteria for membership. But can they do so without being held liable for engaging in discrimination?
Although the courts have not, for the most part, addressed that question, the Ninth Circuit Court of Appeals did conclude in April 2008 that Roommates.com could be found liable of violating housing anti-discrimination laws by requiring users to create a profile disclosing their gender, sexual orientation and whether or not they would bring children to live with them in the housing accommodations advertised on that site. Users were barred from viewing listings that did not match their individual profiles. For instance, a gay male would not be notified of housing opportunities offered only to heterosexual males. The fair housing counsels who brought suit argued that the online service provided by the website was akin to that offered by real estate agent or broker who would inarguably be found liable for telling a client, “Sorry, sir, but I can’t show you any listings on this block because you are [gay/female/black/a parent].” The Court concluded that “[i]f such screening is prohibited when practiced in person or by telephone, we see no reason why Congress would have wanted to make it lawful to profit from it online.” (Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (Ninth Circuit Court of Appeals 2008) 521 F.3d 1157.)
Is the analysis the same with regard to online discussion forums which may be utilized only by members? In the case of the of the mothers’ forum in question, there were multiple levels of membership offered. The debate escalated when the gentleman in question purchased a “senior” membership granting him access to “private” areas of the site. Other members soon learned there is no such thing as true “privacy” on the internet and began frantically deleting their past posts and photographs that they deemed inappropriate for men.
As for the gentleman in question, he said he just wanted to network with other parents. The self-employed web programmer who spends his days online did not intend to incite controversy. “I never wanted to take up the cause of men joining women’s groups,” he told the local newspaper. “I don’t have the time or energy to do that. I just wanted to join a community of like-minded parents.” The verbiage used in his formal introduction to the group supports his stated intent. He described himself as the 30-year-old father of a “wonderful little girl” who loves to cook, shop and spend time with his family. He even offered other members his recipe for Thanksgiving turkey.
Until such time as the courts provide answers to the many questions raised by this and similar occurrences, website and forum owners should heed the advice of Harvard law professor John Palfrey, executive director of the Berkman Center for Internet and Society. “You pretty much have to treat them (Web sites) as public spaces. It’s not all that different than going into the town common and having a conversation, with one big difference being that it may be recorded for posterity. It may be a lot less private by virtue of the technology.”
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