Websites offering online background reports have proliferated on the Internet. Consumers asserting claims against such sites under the Fair Credit Reporting Act (FCRA) have faced hurdles under Section 230(c)(1) of the Communications Decency Act (CDA). Operators of the sites argue that they are online service providers rather than credit reporting agencies subject to FCRA, and that because the sites collect and organize publicly available data obtained from third parties, Section 230 immunizes them from liability with respect to the background reports generated using such data.
Although some lower courts have considered the question of whether Section 230 immunity applies to FCRA claims brought against online background report providers, Henderson v. Source for Public Data—decided in November 2022—is the first time any U.S. Court of Appeals has addressed the issue. While Section 230 may still provide immunity against some claims asserted against such sites, the Fourth Circuit’s decision in
Henderson suggests that such immunity is not categorical and depends on how such sites present third-party data.
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