Tag: Section 230

Fourth Circuit Rules Section 230 Does Not Shield Online Background Check Providers From FCRA Claims December 3, 2022 In early November, the US Court of Appeals for the Fourth Circuit reversed and remanded a case addressing Section 230 of the Communications Decency Act (CDA). In this case, the court considered the defendant's argument whether Section 230 protected background check providers from claims of violations under the Fair Credit Reporting Act (FCRA). The plaintiffs alleged that the defendant's website counted as a consumer reporting agency (CRA), as described by the FCRA. They explained how the website collected, sorted, and provided public information in a convenient and easy-to-understand format that third parties could purchase. This information included criminal and civil court records. As a result, the plaintiff argued that the FCRA's strict requirements should apply to the defendant. Furthermore, the plaintiff claimed the defendant failed to meet the federal law's accuracy, certification, and notice requirements. Upon review, the district court held that Section 230 of the CDA applied to the FCRA. The court based this decision on how the section clarifies that providers and users of interactive computer services did not act as the speaker of information provided by third parties. As such, the court held that it applied to the defendants. According to the defendants, they communicated public record information. As a result, they emphasized that the FCRA liabilities did not apply. Upon appeal to the Fourth Circuit, the court reviewed whether Section 230 of the CDA preempts claims of procedural and disclosure violations under the FCRA. It would not hold the defendant liable as a speaker or publisher of third-party information if it preempted the defendant. In making its decision, the appellate court concurred with an amicus brief filed by the FTC and other federal and state agencies. These agencies argued that the court misconstrued the claims and did not attempt to treat the defendant as a speaker or publisher. Instead, the amicus brief argued that the liability stemmed from the defendant's failure to comply with other material obligations under the FCRA. This failure included maintaining reasonable procedures for maximum possible accuracy when preparing reports, notifying consumers when acquiring reports for employment purposes, receiving certification from the employer, and providing consumers with a copy of their files upon request. The Fourth Circuit agreed with these points and held that Section 230 immunity only extends to "certain claims, in specific circumstances, against particular types of parties." As a result, the Fourth Circuit decided that the four claims did not qualify for such protection. In addition, the court held that the defendant's failure to meet the FCRA's employment requirements or provide a copy of the plaintiff's report on request did not treat the defendant as a publisher or speaker. As such, it did not qualify for Section 230 immunity. In addition, the remaining two claims that the defendant failed to ensure reported records were complete, not obsolete. In addition, the defendant allegedly did not maintain procedures to guarantee maximum accuracy. However, the court decided these claims applied because the defendant had made substantive changes to the third-party information in preparing reports. The court found that these changes contributed to their unlawful nature. This decision qualified the company as an information content provider, which is not protected by Section 230. As a result, the Fourth Circuit reversed the lower court's decision and remanded the case for further proceedings. As this case shows, employers must acquire accurate information from a trusted background check provider in compliance with the FCRA. Not only does partnering with the right provider assist in avoiding unnecessary liability, but it also ensures the company has accurate and complete information. The company can make a proper, educated employment decision with the right provider. Ready to discover more about Pre-employ’s background checks? Speak to a Sales Rep today. Source

Tag: Section 230

Fourth Circuit Rules Section 230 Does Not Shield Online Background Check Providers From FCRA Claims

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