On the 6th August 2019 the Workplace Relations Commission (WRC) delivered its decision following a complaint brought against Daft Media Limited (Daft.ie) by the Irish Human Rights and Equality Commission (IHREC). This complaint concerned advertisements for rental properties, hosted on Daft.ie, which the IHREC argued contravened section 12 of the Equal Status Acts 2000-2015. S 12 requires that a person ‘shall not publish or display or cause to be published or displayed’ any advertisements which contravene the provisions of the Equal Status Acts; ie, advertisements which are discriminatory in nature.
The advertisements in question were alleged to discriminate on grounds of housing assistance, age, and family status, by containing phrases such as ‘rent allowance not accepted’, ‘suit family or professionals only’, and ‘would suit young professionals’. In response to the complaint, Daft.ie did not dispute that these phrases were discriminatory and in contravention of the Equal Status Acts but instead argued that it was not an advertiser itself, serving merely as an ‘Information Society Service Provider’ (ISSP) as defined in the E-Commerce Directive. On this ground, the website argued that it could not be held liable for any advertisements which it displayed, as it was a ‘mere conduit’ through which third parties could publish advertisements.
The WRC rejected this reasoning and held that Daft.ie could be held vicariously liable for advertisements hosted on the website. Important to this finding was the fact that Daft’s position in relation to the advertisements was not of a ‘mere technical automatic and passive nature’ as required to be caught under the E-Commerce Directive—the website explicitly retains the right to remove advertisements at its own discretion. The Commission adopted a liberal interpretation of the Equal Status Acts, holding that the Oireachtas had intended to legislate for a ‘wide range of possible discrimination that could arise in relation to the provision of accommodation’. In particular, the WRC noted the all-encompassing wording contained in section 6(1)(c) of the Equal Status Act, which prohibited discrimination in relation to ‘providing accommodation or any services or amenities related to accommodation…’. It considered that Daft.ie fit under the category of ‘services or amenities related to accommodation’.
The WRC accordingly made an order that Daft.ie refrain from allowing advertisements to be published or displayed on its website which contravenes section 12 of the Equal Status Acts. It also ordered that a method be developed in order to ensure that this order is adhered to, consisting of a filter to identify ‘trigger’ words and phrases that could be in violation of equality legislation.
This decision highlights a pragmatic and proactive approach by the WRC to tackling systemic discrimination in the provision of accommodation. It sets a precedent that websites which serve as online marketplaces may not absolve themselves of responsibility for the content and character of the advertisements which they host. The imposition of such responsibility on those who develop these platforms helps to mitigate the impracticality of addressing individual advertisements which violate equality legislation, which would place an undue burden on the IHREC, the one body with the power to refer such violations to the WRC (as per s 23(1)(b) of the Equal Status Acts and s 44 of the Irish Human Rights and Equality Commission Act 2014). It also mitigates against the difficulties and impracticalities of individual complainants bringing disputes against prospective landlords for discrimination on grounds of housing assistance and is likely to have a significantly wider impact that such individual complaints.
