ADJ-00005960

Complainant

Respondent

Parties

  Irish Human Rights and Equality Commission

Daft Media Limited t/aDaft.ie

Representatives

Cathal McGreal B.L.  instructed by the lrish Human Rights and Equality Commission

 Tom Mallon S.C.  instructed by Arthur Cox Solicitors

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under Section 21 Equal Status Act, 2000

CA-00007808-001

25/10/2016

 This complainant submitted this complaint on the 25th of October 2016.   This complaint is taken under section 12 of the Equal Status Acts 2000-2O15 which prohibits discriminatory advertising and in accordance with Section 23 the complaint has been referred by IHREC.

Section 23 of the Equal Status Acts provides that the Equality Authority enjoys a power to refer a complaint of discriminatory advertising to the Workplace Relations Commission. Section 23(1)(b) of the Equal Status Acts provides that where it appears to the Equality Authority that a person has contravened or, is contravening section 12(1) of the Equal Status Acts (providing for the prohibition on discriminatory advertising) the matter may be referred by the Equality Authority to the Director of the Workplace Relations Commission. The IHREC now enjoys this power, by virtue of section 44 of The lrish Human Rights and Equality Act 2O14, which provides that all functions immediately before establishment day of the IHREC, that were vested in a body (including the Equality Authority) are now transferred to the IHREC.

In accordance with his powers under section 75 of the Employment Equality Acts, 1998-2015 and under the Equal Status Acts, 2000-2015, the Director delegated the cases to me Orla Jones, an Adjudication/Equality Officer, for investigation, hearing and decision and for the exercise of other relevant functions of the Director under III of the Equal Status Acts, 2000-2015. Written submissions were received.   As required by Section 25(1) and as part of my investigation, I proceeded to a Hearing of this matter on  the 16th of March 2018, the 19th of October 2018 and the 11th of January 2019.   

The complainant submits  that

 a number of advertisements for rental properties published and/or displayed on the property rental website which is owned and operated by the respondent indicate an intention to engage in prohibited conduct for the purpose of section 12 of the Equal Status Acts 2000-2015 which states that

 "(l) a person shall not publish or display or cause to be published or displayed an advertisement which indicates an intention to engage in prohibited conduct might reasonably be understood as indicating such an intention. "

IHREC undertook a review of the website which is owned and operated by the respondent on 17 May 2016 and identified a number of advertisements which appear to discriminate on the housing age and family status grounds.  These advertisements include:

A – “rent allowance not accepted’. This content is discriminatory on the housing assistance ground;

B – “suit family or professionals only’. This content is discriminatory on the family status ground and on the housing assistance ground; and

C – “would suit young professionals” and “references required”. This content is discriminatory on the age ground and in the context of professional or work references, also the housing assistance ground.

It is  submitted that the statements as referred to in advertisements A, B and C above indicate an intention to discriminate in respect of provision of accommodation services on the housing assistance ground, in circumstances where the phrases referred to, and are directed towards prospective tenants appear to discriminate against persons who are in receipt of rent supplement or, any under the Social Welfare Acts, by reference to phrases such as 'rent allowance not accepted", 'suit professionals and 'references required".

 lt is submitted that Advertisement B also discriminates on the "family status ground' where it states suit family', and thus seeks to exclude prospective tenants who do not fall within the meaning of 'family for the purposes of the Equal Acts.

lt is further submitted that Advertisement C also discriminates on the age ground where it seeks 'young professionals", thus seeks to exclude older persons as prospective tenants.

Section 23 of the Equal Status Acts provides that the Equality Authority enjoys a power to refer a complaint of discriminatory advertising to the Workplace Relations Commission.

The complainant on 1 June 2016 wrote to the respondent, pursuant to section 21(2) of the Equal Status Acts, notifying of its intention engage its powers under section 23 thereof by referring complaints of discriminatory advertising to the Workplace Relations, if not satisfied with the response to the allegations of prohibited conduct as outlined in its letter, or in circumstances where it did not receive a response within one month from the date of this letter.

The respondent replied by letters of 22 June and 5 July 2016. The complainant having had regard to said correspondence, was not satisfied with the response provided and accordingly decided to refer a complaint to the Workplace Relations Commission on the housing assistance ground, the age ground and the family status ground. 

 ln a letter to the respondent dated 19 October 2016 informing it of its decision to refer a complaint, the complainant advised that it would withdraw said complaint as against the respondent in circumstances where it provides the following written undertaking:

Refrain from publishing or, displaying or permitting to be published or displayed on its website advertisements that indicate an intention to engage in prohibited conduct (as defined by the Equal Status Acts 2000-2015) or might reasonably be understood as indicating such an intention and specifically advertising content consisting of the following phrases, or their equivalent:

'Rent allowance not accepted'

"Suits professionals only

'Would suit young professional',

'Suit family or professionals only'

“no rent, rental supplement or allowance accepted no housing assistance accepted tenants will be means tested, no unemployed persons, dole recipients will not be accepted, job-seekers assistance or benefit, social welfare or their synonyms.

Please provide current work status, or work reference required, suitable for corporate persons, please provide details of work history,

Would suit employed person, worker, employee, self-employed person, remunerated individuals, independent person, means, salaried person, or their synonyms.

Would [not] suit young, mature, senior, elderly, person in their golden years or their synonyms.

Would [not] suit retired, infirm, modern person, student, pensioner or their synonyms.

Would [not] suit family, children, single person, couple, bachelor, married or their synonyms.

Would [not] suit family with dependents, teenager, child, infant, baby, toddler, or their synonyms.

Conventional relationships only or their synonyms.

The respondent declined to take such action and so the claim was lodged with the WRC.

The respondent submits that

it is not an advertiser but it is an Information Society Service Provider (ISSP) as defined in the e Commerce directive Directive 2000/31/EC and transposed into Irish law by the European Communities (Directive 2000/31/ EC) Regulations, 2003 (S.I. 68 of 2003), and submits that it is not under any obligation to monitor the information which it transmits or stores on its sites,

Its website is a “mere conduit" as set out in European Communities (Directive 2000/31/EC) and as such it can have no liability for the advertisements placed on its website by third parties (the "Advertisers"),

In addition, the respondent submits that it has engaged a number of measures to assist Advertisers in complying with their obligations under the Equal Status Acts which include but are not limited to the following:

Any adverts uploaded to the site that contain terms that have been previously reported as discriminatory are diverted to a queue of pending adverts for review. This queue contains a list of advertisements for manual review by a staff member, prior to the advert appearing on our website.

As the respondent cannot prevent Advertisers from editing their advert at a later date, the respondent also operates a "notice and take down" policy.   All users of the respondent website have the option to report any advert that they view on the site directly to our Customer Support Team. The team reviews the advert and takes appropriate action. Customers also have the option to email the respondent directly, via the contact box on our site, message us on Twitter or Facebook, or telephone us to alert us to any advert that they have a concern about.

In the event that an advert has been reported, an email is also sent to the Advertiser to remind them of their legal obligations under the Equal Status Acts. Should the Advertiser update their advert to reinclude any discriminatory content, their account will be suspended.

A rental allowance filter, which previously enabled property searchers to search for properties that accepted rent allowance, was removed in 20 15.

The respondent submits that it educates Advertisers on its site that it is illegal to use discriminatory language in advertisements at the point of advertisement entry on the respondent site via articles which appear in its  blog and via email communication.

 The complainant advised the hearing that the Respondent is a property advertiser having published three advertisements which plainly exhibit an intention to engage in prohibited conduct. That is to say, the advertisements are discriminatory on the age, family status and housing assistance grounds.

Sections 3 and 6 of the Equal Status Act 2000 (as amended) provide as follows:

 Section 3(1) provides:

“For the purposes of this Act discrimination shall be taken to occur— (a) where a person is treated less favourably than another person is, has been or would be treated in a comparable situation on any of the grounds specified in subsection (2) or, if appropriate, subsection (3B), (in this Act referred to as the ‘discriminatory grounds’) which— (i) exists, (ii) existed but no longer exists, (iii) may exist in the future, or (iv) is imputed to the person concerned,”

(2) As between any two persons, the discriminatory grounds (and the descriptions of those grounds for the purposes of this Act) are:

(c) that one has family status and the other does not or that one has a different family status from the other (the “family status ground”),

(f) subject to subsection (3), that they are of different ages (the “age ground”),

Section 3(3B) provides:

“For the purposes of section 6(1)(c), the discriminatory grounds shall (in addition to the grounds specified in subsection (2)) include the ground that as between any two persons, that one is in receipt of rent supplement (within the meaning of section 6(8)), housing assistance (construed in accordance with Part 4 of the Housing (Miscellaneous Provisions) Act 2014) or any payment under the Social Welfare Acts and the other is not (the “housing assistance ground”).”

Section 6(1) provides: “A person shall not discriminate in- (a) disposing of any estate or interest in premises, (b) terminating any tenancy or other interest in premises, or (c) subject to subsection (1A), providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities.”

Section 12 of the Equal Status Act 2000 provides:

“(1) A person shall not publish or display or cause to be published or displayed an advertisement which indicates an intention to engage in prohibited conduct or might reasonably be understood as indicating such an intention.

(2) A person who makes a statement which the person knows to be false with a view to securing a publication or display in contravention of subsection (1) shall, upon the publication or display being made, be guilty of an offence.

(3) In subsection (1), “advertisement” includes every form of advertisement, whether to the public or not and whether in a newspaper or other publication, on television or radio or by display of a notice or by any other means, and references to the publishing or display of advertisements shall be construed accordingly.”

It is worth noting that Section 12(1) applies to those who “publish and display” an advertisement as well as to those who “cause to be published or displayed” the discriminatory advertisement content.

The case of Southern Health Board v Mitchell ([2001] E.L.R. 201) requires that the complainant establish the facts that he or she seek to rely which raise a presumption of discrimination under the Acts.

Section 36 of the Irish Human Rights and Equality Commission Act 2014 provides the Irish Human Rights and Equality Commission (IHREC) with exclusive power to enforce Section 12 of the Equal Status Act 2000, and Section 23 also gives the IHREC exclusive power to refer complaints arising under this Section to the WRC.

The complainant advised the hearing that it had following a rudimentary search of the Respondent’s website identified a number of advertisements which, in the view of the Complainant referred to prohibited conduct on the housing assistance, age and family status ground for the purpose of the Acts. The advertisements contained the following discriminatory content:

A – “rent allowance not accepted’. This content is discriminatory on the housing assistance ground;

B – “suit family or professionals only’. This content is discriminatory on the family status ground and on the housing assistance ground; and

C – “would suit young professionals” and “references required”. This content is discriminatory on the age ground and in the context of professional or work references, also the housing assistance ground.

The complainant submits that the three advertisements as displayed on the Respondent’s website indicate an intention, or might reasonably be understood to indicate an intention, to engage in prohibited conduct (i.e. discrimination on the above cited discriminatory grounds in the provision rental accommodation).

23(1)(b) of the Acts provides,

“Where it appears to the [IHREC] that … a person has contravened or is contravening section 12(1) … the matter may be referred by the Authority to the Director of the Workplace Relations Commission.”

The Respondent in response to the claims advised the hearing that responsibility for these advertisements lies with the authors and agents of these advertisements and submits that the respondent itself is a ‘mere conduit’ in accordance with the European Communities e Commerce directive 31/2000/EC.   The Respondent denies responsibility for the advertisement content displayed on its website.    It is worth noting at this point that Section 12(1) of the Act applies to those who “publish and display” an advertisement as well as to those who “cause to be published or displayed” the discriminatory advertisement content.

The respondent in its response to the complaint outlined that it has taken the following steps to assist Advertisers in complying with their obligations under the Equal Status Acts which include but are not limited to the following:

Any adverts uploaded to the site that contain terms that have been previously reported as discriminatory are diverted to a queue of pending adverts for review. This queue contains a list of advertisements for manual review by a staff member, prior to the advert appearing on our website.

As the respondent cannot prevent Advertisers from editing their advert later, the respondent also operates a "notice and take down" policy.   All users of the respondent website have the option to report any advert that they view on the site directly to our Customer Support Team. The team reviews the advert and takes appropriate action. Customers also have the option to email the respondent directly, via the contact box on our site, message us on Twitter or Facebook, or telephone us to alert us to any advert that they have a concern about.

In the event that an advert has been reported, an email is also sent to the Advertiser to remind them of their legal obligations under the Equal Status Acts. Should the Advertiser update their advert to reinclude any discriminatory content, their account will be suspended.

A rental allowance filter, which previously enabled property searchers to search for properties that accepted rent allowance, was removed in 20 15.

The respondent submits that it educates Advertisers on its site that it is illegal to use discriminatory language in advertisements at the point of advertisement entry on the respondent site via articles which appear in the respondent’s blog and via email communication.

The respondent asserts that it is not an advertiser or a publisher but that it is an Information Society Service Provider (ISSP) as defined in the e Commerce directive 31/2000/EC and that it is not responsible for the content of the material which appears on its website.

The Respondent relies on the EU law concept of the ‘mere conduit’ referred to in Directive 31/2000/EC (hereinafter ‘the Directive’) and the domestic implementation measures and claims that these provisions render it immune from complaints such as the present complaint.   The respondent at the hearing also sought to rely on the implementing regulations of the Directive in respect of the rights of a ‘relevant service provider’ and the freedom to provide relevant services.  The complainant in response to this submits that it is entitled to bring this claim regardless of any ‘mere conduit’ argument.

Submission and comparisons were also made by the parties in the course of the hearing in respect of the decision of the Advocate General in the Minister for Justice, Equality & anor. -v- Boyle & ors. (Case C-387/17).

The respondent has also argued that it can rely on Section 14 of the Equal Status Acts and the prohibition relating to any action ‘required by’ or ‘required under’ various Community laws.   Th respondent again refers to the E Commerce directive in advancing this argument.

S.14 provides

“Nothing in this Act shall be construed as prohibiting-

(a) the taking of any action that is required by or under

(i) any enactment or order of a court,

(ii)any act done or measure adopted by the European Union, by the European Communities or institutions thereof or by bodies competent under the Treaties establishing the European Communities, or

(iii) any convention or other instrument imposing an international obligation on the State, or

 The respondent in its defence referred to the E Commerce directive and its implementing regulations as authority for its argument that it is an ISSP and therefore not liable for the content of advertisements which appear on its website.     The complainant in response to this at the hearing referred to paragraph 42 of the preamble to the Directive which provides:

“(42) The exemptions from liability established in this Directive cover only cases where the activity of the information society service provider is limited to the technical process of operating and giving access to a communication network over which information made available by third parties is transmitted or temporarily stored, for the sole purpose of making the transmission more efficient; this activity is of a mere technical, automatic and passive nature, which implies that the information society service provider has neither knowledge of nor control over the information which is transmitted or stored.”

The complainant at the hearing argued that it cannot be said that the Respondent’s ‘sole purpose’ is the making of the transmission of the advertisement ‘more efficient’ and that it cannot be said to have neither knowledge nor control over the information transmitted or stored. The Complainant does not accept that the role of the Respondent is, one that is ‘technical, automatic and passive’ in nature.  The Respondent in advancing its defence has also sought to rely on case-law which applies to ‘hosts’ pursuant to Article 14 of Directive 31/2000/EC.

The complainant advised the hearing that the complaint in the present case is very specific and concerns the use in electronic advertisement of discriminatory words and phrases relating to three specific concepts: age, family status and housing assistance.   The complainant further submits  that a simple and inexpensive piece of computer programming together with carefully chosen and periodically reviewed ‘red flag’ words and phrases would resolve the difficulty.  The complainant stated that it seems from the respondent’s own evidence that the Respondents have already put in place a framework of identifying “red flag” phrases and procedures to remove or edit adds once identified and notified to them.

The complainant went on to state that the respondent in order to comply with the order being sought by the complainant would require no more than a technical adjustment of a piece of software to identify discriminatory words and phrases on the ten discriminatory grounds and as it already has in place some form of technical framework for identifying “red flag” phrases and the procedures to remove, or edit adds once identified it would be a relatively simple for the Respondents to add further “words” and “phrases” to the list that would identify advertisements with potentially discriminatory content for review and further ensure that the appropriate staff are adequately trained in the Acts so to identify ads which hold discriminatory content.

The respondent submits that the claim as presented refers to three specific adverts and submit that any finding made can only be made in respect of these adverts and cannot be extended to include all discriminatory grounds. 

The Complainant advised the hearing that another property website has recently introduced new procedures to review property advertisements that will potentially breach equality legislation.   That property website has developed methods to identify, monitor and block discriminatory advertising on its website.  The complainant stated that it had previously engaged with the other property website in this regard and has welcomed the initiative.

In considering the within complaint and the many arguments raised by the respondent in respect of the protection afforded to it under the ecommerce directive and in respect of its assertion that it has no liability for advertising content placed on its website by third parties I am mindful of Section 42 of the Equal Status Act which provides for vicarious liability under the Equal Status Acts.

Section 42 of the Equal Status Acts provides as follows in respect of vicarious liability:

“42. — (1) Anything done by a person in the course of his or her employment shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that person’s employer, whether or not it was done with the employee’ s knowledge or approval.

(2) Anything done by a person as agent for another person, with the authority (whether express or implied and whether precedent or subsequent) of that other person shall, in any proceedings brought under this Act, be treated for the purposes of this Act as done also by that other person.

(3) In proceedings brought under this Act against an employer in respect of an act alleged to have been done by an employee of the employer, it shall be a defence for the employer to prove that the employer took such steps as were reasonably practicable to prevent the employee —

            (a) from doing that act, or

            (b) from doing in the course of his or her employment acts of that description.”

In considering the matters before me I am also guided by the purposive approach to what are termed as ‘remedial social statutes’ adopted by the Superior Courts. The title to the Equal Status Act 2000 describes it as: “An Act to promote equality and prohibit types of discrimination, harassment and related behaviour in connection with the provision of services, property and other opportunities to which the public generally or a section of the public has access, to provide for investigating and remedying certain discrimination and other unlawful activities...” In G -v- The Department for Social Protection 2015 IEHC 419, Para 161, Ms Justice O’Malley referred to the Equal Status Act 2000 as being a ‘remedial social statute’ requiring liberal interpretation as follows: “…the Act is intended to cover a broad range of human life and activity, and that its overall purpose is to reduce the social wrong of discrimination based on improper considerations. Having regard to the principles applicable to remedial statutes, it should be construed widely and liberally.”

 In this respect, she was guided by Dodd (2008) on Statutory Interpretation in Ireland, Para 6.52: “‘Remedial social statutes’ and legislation of a paternal character favour a purposive interpretation and are said to be construed as widely and liberally as can fairly be done within the constitutional limits of the courts' interpretive role. This formula has been repeated in a number of cases [citations at fn. 82 p.179] …” Remedial social statutes are enactments which seek to put right a social wrong and provide some means to achieve a particular social result.”

In adopting a purposive approach to the Act which requires a wide and liberal interpretation and taking the provisions as a whole, it is clear that the Oireachtas intended to legislate for a wide range  of possible discrimination that could arise in relation to the provision of accommodation.  In particular, I note the all-encompassing nature of the wording contained in Section 6(1)(c) as prohibiting discrimination in relation to: “providing accommodation or any services or amenities related to accommodation or ceasing to provide accommodation or any such services or amenities”.

I am thus satisfied that the respondent as a property website is firstly covered by Section 6 (1)(c) in its own right as it provides “services or amenities related to accommodation” and secondly I am satisfied by virtue of Section 42 of the Act that the respondent has a vicarious liability for advertisements placed on its website by third parties where these constitute a breach of the Equal Status act.

During the hearing of this matter numerous lengthy submissions were made by the parties and the E commerce directive and its implementing regulations were discussed in great detail and at length.

Having given a great deal of consideration to the arguments raised by the respondent I am satisfied that there is no evidence within the arguments raised to satisfy me that the Ecommerce directive shields or protects the respondent from its obligations under the Equal Status Acts and specifically in respect of a complaint referred to the WRC under Section 12 of the Equal Status Acts.   In addition, having regard to Section 42 of the Equal Status Act I am satisfied that the respondent is vicariously liable for advertising content on its website.

Accordingly, having regard to the totality of the evidence adduced in relation to these matters I conclude that the complainant has raised a prima facie case in respect of discrimination on the grounds of family status and age and on the rent allowance ground which the respondent has failed to rebut and I am also satisfied that the respondent in permitting these advertisements to be displayed on its website has breached Section 12 of the Equal Status Acts.

I have concluded my investigation of this complaint and for the above reasons I find, pursuant to Section 25(4) of the Acts, that the complainant has established a prima facie case of discrimination on the grounds of family status, age and on the rent allowance ground which the respondent has failed to rebut and I am also satisfied that the respondent in permitting these advertisements to be displayed on its website has breached Section 12 of the Equal Status Acts.    Accordingly, I order that the respondent:

Refrain from publishing or, displaying or permitting to be published or displayed on its website advertisements that indicate an intention to engage in prohibited conduct (as defined by the Equal Status Acts 2000-2015) or might reasonably be understood as indicating such an intention and develop a methodology to identify, monitor and block discriminatory advertising on its website.

This methodology should include a filter to identify “trigger” words and phrases that could be in contravention of equality legislation.   A starting point for this list of trigger words and phrases is the list provided by the complainant in its correspondence of 19 October 2016 to the respondent.   This list can be added to and updated by the respondent as necessary in order to avoid other similar claims in the future.