Lansing v. Southwest Airlines Co. , 980 N.E.2d 630 ( 2012 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
Lansing v. Southwest Airlines Co., 2012 IL App (1st) 101164Appellate Court GREGG LANSING, Plaintiff-Appellant, v. SOUTHWEST AIRLINES
Caption COMPANY, a Foreign Corporation, Defendant-Appellee.
District & No. First District, Sixth Division
Docket No. 1-10-1164
Filed June 8, 2012
Held The trial court erred in entering summary judgment for defendant in an
(Note: This syllabus action alleging defendant was negligent in supervising one of its
constitutes no part of employees who used defendant’s computer, Internet and telephone
the opinion of the court facilities to harass and threaten plaintiff with e-mails and text messages,
but has been prepared notwithstanding defendant’s contention that section 230 of the
by the Reporter of Communications Decency Act gave defendant immunity, since section
Decisions for the 230 did not apply where the complaint did not allege defendant was the
convenience of the publisher of its employee’s communications, plaintiff alleged defendant
reader.)
failed to address the employee’s threats and misuse of his employment
after being informed of the misconduct, and the negligent supervision
claim did not depend on who published the offensive information.
Decision Under Appeal from the Circuit Court of Cook County, No. 06-L-8221; the Hon.
Review Kathy M. Flanagan, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Besetzny Law, P.C. (Kevin S. Besetzny, of counsel), and Leslie J. Rosen,
Appeal both of Chicago, for appellant.
Matthew T. Walsh and Cozen O’Connor, both of Chicago, for appellee.
Panel JUSTICE LAMPKIN delivered the judgment of the court, with opinion.
Presiding Justice R. Gordon and Justice Garcia concurred in the judgment
and opinion.
OPINION
¶1 Plaintiff Gregg Lansing sued defendant Southwest Airlines Company for negligent
supervision of its employee. Plaintiff alleged that he notified defendant that its employee was
threatening and harassing him but defendant failed to supervise the employee and take steps
to stop his misconduct. The alleged misconduct included the employee’s use of defendant’s
computer, Internet and telephone facilities to send harassing and threatening e-mails and text
messages.
¶2 The trial court granted summary judgment in favor of defendant based on a finding that
section 230 of the Communications Decency Act of 1996 (CDA) (47 U.S.C. § 230 (2000))
afforded defendant immunity from plaintiff’s claims that arose from the e-mails and text
messages. Plaintiff appealed, arguing that the CDA was inapplicable because his cause of
action did not treat defendant as the publisher or speaker of the offensive e-mails and text
messages but, rather, was based on defendant’s failure to supervise its employee after
defendant had received notice of the employee’s misconduct.
¶3 For the reasons that follow, we reverse the judgment of the trial court.
¶4 I. BACKGROUND
¶5 In August 2006, plaintiff filed a two-count complaint against defendant Southwest
Airlines Company, alleging direct negligence and vicarious liability/ratification. Defendant
filed a motion to dismiss the complaint pursuant to section 2-615 of the Code of Civil
Procedure (Code) (735 ILCS 5/2-615 (West 2006)) for failure to properly plead a cause of
action.
¶6 In June 2007, plaintiff filed a first amended complaint, which alleged that defendant:
failed to adequately supervise its employee, Thomas McGrew; allowed McGrew to use
defendant’s computer, Internet and telephone facilities to threaten and harass plaintiff; and
failed to take appropriate disciplinary action against McGrew despite notice from plaintiff
about McGrew’s misconduct.
¶7 In February 2008, defendant filed a motion for summary judgment pursuant to section
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2-1005(e) of the Code (735 ILCS 5/2-1005(e) (West 2008)), asserting, inter alia, that section
230 of the CDA preempted plaintiff’s state law claim and gave defendant immunity from
liability for plaintiff’s alleged negligence claim.
¶8 In October 2008, the trial court granted defendant’s motion for summary judgment,
finding that defendant was afforded immunity under the CDA for the claims arising out of
McGrew’s use of the Internet because defendant was a provider or user of an interactive
computer service and would be deemed the publisher of the harassing e-mails and text
messages at issue in plaintiff’s cause of action. The trial court noted, however, that the issue
of defendant’s liability for the harassing telephone calls remained pending.
¶9 In December 2008, defendant moved for summary judgment pursuant to section 2-
1005(e) of the Code, asserting, inter alia, that plaintiff could not prove that McGrew made
any threatening telephone calls from one of defendant’s telephones or while under the
supervision of defendant.
¶ 10 In June 2009, plaintiff filed his second amended complaint, which sought damages
against defendant based on its alleged negligent failure–despite repeated notice from
plaintiff–to stop McGrew, who was a flight attendant and supervisor employed by defendant,
from using his position with defendant and defendant’s resources to threaten and harass
plaintiff and his friends, family members and professional colleagues. Specifically, plaintiff
alleged that McGrew met plaintiff’s friend on a Southwest Airlines flight in June of 2004 and
then perceived plaintiff as a rival to McGrew’s relationship with that friend. McGrew, as
defendant’s employee, had access to defendant’s offices, network, computer terminals, work
stations, telephone facilities, customer data information, and business calling cards, and a cell
phone provided by defendant.
¶ 11 Plaintiff also alleged that McGrew, from June 2004 through August 2006, used his access
to defendant’s resources to make harassing telephone calls and send over 1,000 harassing and
threatening text messages or e-mails to plaintiff. According to plaintiff, McGrew threatened
that, as a supervisor, he knew when people made reservations on his flights and would
prevent plaintiff and his family members from flying by placing them on terrorism “no fly”
lists with defendant and its affiliated airlines. Further, McGrew emphasized his position and
authority with defendant, threatened to “haunt” and “completely ruin” plaintiff, and asserted
that no one would believe any complaints plaintiff might lodge against McGrew. As time
progressed, McGrew’s messages and e-mails became increasingly violent, mentioned
plaintiff’s family members by name, and were transmitted directly to plaintiff’s family
members and professional colleagues.
¶ 12 In addition, plaintiff alleged that in April of 2005 and January, March, April and May of
2006, he contacted defendant’s customer relations department, reported McGrew’s
harassment and requested that defendant take measures to stop McGrew’s wrongful conduct
and harassment. Despite that notice, however, McGrew’s wrongful conduct and harassment
continued until his employment with defendant was terminated on August 22, 2006. Plaintiff
asserted that, as a result of McGrew’s conduct and defendant’s failure to adequately
supervise him, plaintiff changed his telephone number several times in an attempt to avoid
McGrew’s harassment; was ostracized by his family members, friends and professional
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colleagues; and suffered embarrassment, humiliation, distress and anxiety.
¶ 13 In July 2009, defendant filed a motion under section 2-615 of the Code (735 ILCS 5/2-
615 (West 2008)) to strike certain allegations and dismiss plaintiff’s second amended
complaint. Defendant argued that plaintiff ignored the trial court’s October 2008 ruling that
the CDA preempted plaintiff’s claims that arose from the e-mails or text messages McGrew
allegedly sent to plaintiff. Defendant also requested sanctions pursuant to Illinois Supreme
Court Rule 137 (eff. Feb. 1, 1994), asserting that plaintiff knew his claim of negligent
supervision was neither well-grounded in fact nor supported by existing law and included
allegations that disregarded the trial court’s October 2008 ruling concerning preemption
under the CDA.
¶ 14 In August 2009, plaintiff moved the trial court to reconsider its October 2008 ruling
about defendant’s immunity under the CDA. Plaintiff argued, inter alia, that no Illinois state
or federal court interpreted the immunity afforded by the CDA so broadly and plaintiff’s
negligent supervision cause of action did not treat defendant as a publisher of McGrew’s e-
mails and texts.
¶ 15 In September 2009, the trial court denied plaintiff’s motion for reconsideration, granted
defendant’s motion to strike and dismiss plaintiff’s second amended complaint, and denied
defendant’s motion for Rule 137 sanctions. The trial court granted plaintiff leave to file a
third amended complaint.
¶ 16 In November 2009, plaintiff filed a third amended complaint, which made the same
allegations that were set forth in his second amended complaint. In the third amended
complaint, plaintiff referenced and attached additional exhibits and emphasized certain
allegations concerning McGrew’s statements about his employment and position with
defendant. Plaintiff elected to stand on his third amended complaint.
¶ 17 In April 2010, the trial court held that its October 2008 grant of summary judgment in
favor of defendant with regard to the CDA stood as the trial court’s ruling on plaintiff’s third
amended complaint. Accordingly, the trial court entered summary judgment in favor of
defendant and against plaintiff on the third amended complaint. The trial court determined
that there was no just reason to delay the enforcement or appeal of its summary judgment
ruling, and plaintiff timely appealed.
¶ 18 II. ANALYSIS
¶ 19 Before addressing the merits of plaintiff’s appeal, we address defendant’s argument that
plaintiff has failed to preserve for review his argument that his lawsuit is outside the purview
of the CDA because it is not based on treating defendant as the publisher of the offensive
material but, rather, is based on defendant’s failure to act on plaintiff’s complaints about its
employee’s misconduct.
¶ 20 Defendant’s argument lacks merit. According to the record, plaintiff’s amended
complaints clearly asserted as the basis of his negligent supervision claim defendant’s failure
to supervise its employee and stop his campaign against plaintiff after plaintiff had notified
defendant of the employee’s harassing and threatening conduct. Plaintiff also argued this
claim to the trial court below in response to defendant’s motion for summary judgment.
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Contrary to defendant’s assertion on appeal, plaintiff’s motion for reconsideration did not
raise a new argument but, rather, reiterated the basis of his claim against defendant as pled
in his amended complaint and argued that the trial court erroneously extended the CDA’s
immunity provision to bar plaintiff’s pled claim.
¶ 21 We review de novo the trial court’s grant of summary judgment. Anderson v. Alberto-
Culver USA, Inc., 317 Ill. App. 3d 1104, 1110 (2000). Summary judgement is a “drastic
means of disposing of litigation and therefore should be allowed only when the right of the
moving party is clear and free from doubt.” Purtill v. Hess, 111 Ill. 2d 229, 240 (1986). “In
determining a summary judgment motion, the pleadings, affidavits, depositions and
admissions on file must be construed strictly against the moving party and liberally in favor
of the opponent.” Anderson, 317 Ill. App. 3d at 1110. Reversal of a grant of summary
judgment is warranted where, on review, a material issue of fact or an inaccurate
interpretation of law exists. Id.
¶ 22 In a cause of action for negligent supervision, the plaintiff must establish that (1) the
employer had a duty to supervise its employee; (2) the employer negligently supervised its
employee; and (3) such negligence proximately caused the plaintiff’s injuries. Mueller v.
Community Consolidated School District 54, 287 Ill. App. 3d 337, 342-43 (1997). The
existence of a duty is a question of law for the court to decide, and the issues of breach and
proximate cause are questions of fact for the trier of fact, provided that there is a genuine
issue of material fact regarding those issues. Anderson, 317 Ill. App. 3d at 1111.
¶ 23 Defendant contends that subsection 230(c)(1) of the CDA (47 U.S.C. § 230(c)(1) (2000))
renders it immune from liability in plaintiff’s negligent supervision cause of action. The trial
court granted defendant’s motion for summary judgment, finding that the CDA protected
defendant from liability as a matter of law. Plaintiff argues that any immunity under
subsection 230(c)(1) of the CDA does not apply to his negligent supervision cause of action
and that, even if it did, defendant does not meet the terms to qualify for such immunity.
¶ 24 Section 230 of the CDA, which is entitled “Protection for private blocking and screening
of offensive material,” protects certain Internet-based actors from certain kinds of lawsuits.
47 U.S.C. § 230 (2000). When Congress enacted section 230 of the CDA, it found that the
rapidly developing array of Internet and other interactive computer services flourished, to the
benefit of all Americans, with a minimum of government regulation and Americans
increasingly relied on interactive media for a variety of political, educational, cultural and
entertainment services. 47 U.S.C. § 230(a) (2000). While Congress sought to promote the
continued development of the Internet and preserve the free market that existed on it,
Congress also wanted to encourage the development of technology that maximized user
control over the information that individuals, families and schools received on the Internet,
including technology that empowered parents to restrict their children’s access to
objectionable or inappropriate online material. 47 U.S.C. § 230(b) (2000).
¶ 25 Accordingly, Congress provided, under subsection (c), which is entitled “Protection for
‘Good Samaritan’ blocking and screening of offensive material,” as follows:
“(1) Treatment of publisher or speaker
No provider or user of an interactive computer service shall be treated as the
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publisher or speaker of any information provided by another information content
provider.
(2) Civil liability
No provider or user of an interactive computer service shall be held liable on account
of–
(A) any action voluntarily taken in good faith to restrict access to or availability
of material that the provider or user considers to be obscene, lewd, lascivious, filthy,
excessively violent, harassing, or otherwise objectionable, whether or not such
material is constitutionally protected; or
(B) any action taken to enable or make available to information content providers
or others the technical means to restrict access to material described in paragraph
(1).” 47 U.S.C. § 230(c) (2000).
An interactive computer service provider must, when it enters an agreement with a customer
for the provision of interactive computer service, notify the customer that parental control
protections are commercially available. 47 U.S.C. § 230(d) (2000).
¶ 26 Concerning its effect on other laws, section 230 of the CDA shall not be construed to:
impair the enforcement of any federal criminal statute and certain specified federal statutes
that concern the prohibition of obscene or harassing telephone calls, the restriction of
children’s access to harmful material on the World Wide Web, obscenity, and sexual
exploitation of children (47 U.S.C. § 230(e)(1) (2000)); limit or expand any law pertaining
to intellectual property (47 U.S.C. § 230(e)(2) (2000)); limit the application of the Electronic
Communications Privacy Act of 1986 (18 U.S.C. § 2510 (2000)) or any similar state law (47
U.S.C. § 230(e)(4) (2000)); or prevent any state from enforcing any state law that is
consistent with section 230 (47 U.S.C. § 230(e)(3) (2000)). Furthermore, “[n]o cause of
action may be brought and no liability may be imposed under any state or local law that is
inconsistent with [section 230].” 47 U.S.C. § 230(e)(3) (2000).
¶ 27 “The term ‘interactive computer service’ means any information service, system, or
access software provider that provides or enables computer access by multiple users to a
computer server, including specifically a service or system that provides access to the
Internet and such systems operated or services offered by libraries or educational
institutions.” 47 U.S.C. § 230(f)(2) (2000).
¶ 28 “The term ‘information content provider’ means any person or entity that is responsible,
in whole or in part, for the creation or development of information provided through the
Internet or any other interactive computer service.” 47 U.S.C. § 230(f)(3) (2000).
¶ 29 When interpreting a federal statute, state courts should generally follow the decisions of
federal courts to ensure that the statutory scheme is uniformly applied. Wilson v. Norfolk &
Western Ry. Co., 187 Ill. 2d 369, 374 (1999). When federal cases conflict or are inconsistent
with respect to a given proposition, and no United States Supreme Court case directly
addresses the issue, we will follow the decision that is more “reasonable and logical” and
more consistent with both the statutory purpose and Supreme Court precedent. Id. at 381-82.
Also, because Illinois federal district courts are bound by Seventh Circuit precedent, we tend
to give greater weight to Seventh Circuit cases to “avoid[ ] the anomalous situation of two
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contrary results being obtainable depending on where the case is filed in Illinois.” Id. at 383(“[W]ere we to adopt a rule contrary to that of the Seventh Circuit, *** the viability of a
claim [under a given federal statute] could turn on whether the action was filed in federal or
state court.”). These are not unyielding rules, however; where there is a split of authority
among the federal circuit courts of appeal and the Supreme Court has not ruled on the issue,
we are not required to follow federal cases, even those from the Seventh Circuit, that appear
wrongly decided. Bowman v. American River Transportation Co., 217 Ill. 2d 75, 91 (2005).
¶ 30 In analyzing the scope of section 230(c)(1), the plain meaning of the statute is conclusive
unless the literal application of the statute will produce a result demonstrably at odds with
the intentions of its drafters. See United States v. Balint, 201 F.3d 928, 932-33 (7th Cir.
2000). “We look beyond the express language of a statute only where such language is
ambiguous, or where a literal interpretation would lead to absurd results or thwart the goals
of the statutory scheme.” Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Lauer, 49 F.3d 323,
326-27 (7th Cir. 1995). A court’s interpretation is guided not just by a single sentence or
clause, but by the language of the whole law and its policy. Balint, 201 F.3d at 932-33.
¶ 31 Defendant contends that it is entitled to immunity under the CDA from plaintiff’s cause
of action because (1) defendant is afforded broad immunity as a provider or user of an
interactive computer service (ICS); (2) plaintiff’s cause of action treats defendant as the
publisher or speaker of the offensive communications; and (3) a third party, McGrew,
authored the offensive communications.
¶ 32 A. Providers or Users of an Interactive Computer Service
¶ 33 First, we consider whether defendant qualifies as a provider or user of an ICS, which
term is defined in section 230(f)(2) of the CDA. Plaintiff argues that defendant is a
commercial air travel provider, not an Internet service provider, and when Congress enacted
the CDA in 1996, it did not intend to include within the concept of an ICS employers who
gave their employees access to the Internet for the purpose of their work. In 1996, employers
did not utilize the Internet in their day-to-day operations, and the language of the CDA,
according to plaintiff, indicates that it was originally tailored for traditional providers of
Internet and e-mail services, such as AOL, CompuServe, Prodigy and Earthlink.
¶ 34 Defendant responds that the history surrounding the CDA indicates that Congress
intended to protect all Internet service providers, including employers because they provide
a “front end to the Internet.” Defendant cites a statement in the Congressional Record that
was made when section 230 was offered as an amendment to the proposed CDA.
Specifically, Representative Christopher Cox explained that the amendment would
accomplish two things. In addition to establishing the policy that Congress did not want the
federal government to regulate Internet content, the amendment would also:
“protect computer Good Samaritans, online service providers, anyone who provides a
front end to the Internet, let us say, who takes steps to screen indecency and offensive
material for their customers. It will protect them from taking on liability.” 141 Cong.
Rec. H8460-01, at 8470 (daily ed. Aug. 4, 1995) (statement of Rep. Cox).
Defendant also cites the conference report, which commented that the Good Samaritan
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protections from civil liability in section 230 of the CDA applied to all interactive computer
services, “including non-subscriber systems such as those operated by many businesses for
employee use.” H.R. Rep. No. 104-458, at 194 (1996) (Conf. Rep.), reprinted in 1996
U.S.C.C.A.N. 124, 208.
¶ 35 The parties’ arguments concerning the term Internet service provider, which is neither
defined nor mentioned in section 230 of the CDA, are irrelevant to the issue before this court.
The proper focus of the analysis is whether defendant is a user or provider of an interactive
computer service as defined in section 230(f)(2) of the CDA. See Batzel v. Smith, 333 F.3d
1018, 1030-31 (9th Cir. 2003).
¶ 36 We find that, under the plain language of the statute and its broad definition of an ICS,
an employer like defendant qualifies as a provider or user of an ICS because defendant uses
an information system or service that multiple users, like defendant’s employees, use to
access the Internet. See 47 U.S.C. § 230(f)(2) (2000). See also Delfino v. Agilent
Technologies, Inc., 52 Cal. Rptr. 3d 376, 389-90 (Cal. Ct. App. 2007) (corporate employer
that gave its employees Internet access was an ICS provider); Kathleen R. v. City of
Livermore, 104 Cal. Rptr. 2d 772, 777 (Cal. Ct. App. 2001) (library providing Internet access
to the public by use of computers qualified as an ICS provider or user).
¶ 37 B. Subsection 230(c)(1) and Broad Immunity
¶ 38 Defendant contends that subsection 230(c)(1) of the CDA grants an ICS user or provider
broad immunity from any potential liability that is derived from content posted on or
transmitted over the Internet by a third party. Defendant’s contention has support in other
state courts and federal circuits. See Delfino, 52 Cal. Rptr. 3d at 390 (“it is clear that
immunity under section 230” applies to a variety of tort claims other than defamation);
Universal Communication Systems, Inc. v. Lycos, Inc., 478 F.3d 413, 419 (1st Cir. 2007) (In
light of section 230’s policy concerns, the court found that “section 230 immunity should be
broadly construed.”); Batzel v. Smith, 333 F.3d 1018, 1031 n.19 (9th Cir. 2003) (describing
section 230 as creating a “broad immunity”); Ben Ezra, Weinstein, & Co. v. American Online
Inc., 206 F.3d 980, 984-85 (10th Cir. 2000) (section 230 “creates a federal immunity to any
state law cause of action that would hold computer service providers liable for information
originating with a third party”); Zeran v. America Online, Inc., 129 F.3d 327, 328-30 (4th
Cir. 1997) (“By its plain language, § 230 creates a federal immunity to any cause of action
that would make service providers liable for information originating with a third-party user
of the service.”).
¶ 39 Other courts, however, disagree with or question the proposition that subsection
230(c)(1) provides such broad immunity from liability deriving from third-party content. City
of Chicago v. Stubhub!, Inc., 624 F.3d 363, 366 (7th Cir. 2010) (“subsection (c)(1) does not
create an ‘immunity’ of any kind”); Barnes v. Yahoo!, Inc., 570 F.3d 1096, 1100 (9th Cir.
2009) (“Looking at the text [of subsection (c)(1)], it appears clear that neither this subsection
nor any other declares a general immunity from liability deriving from third-party content
***.”); Chicago Lawyers’ Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 519
F.3d 666, 669-71 (7th Cir. 2008) (questioning whether subsection 230(c)(1) creates any form
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of immunity); accord Doe v. GTE Corp., 347 F.3d 655, 660 (7th Cir. 2003).
¶ 40 We agree with the analysis of the Seventh Circuit that section 230(c) “as a whole cannot
be understood” as granting blanket immunity to an ICS user or provider from any civil cause
of action that involves content posted on or transmitted over the Internet by a third party.
Craigslist, Inc., 519 F.3d at 669, 671. Neither section 230’s title (“Protection for private
blocking and screening of offensive material”) nor subsection (c)’s caption (“Protection for
‘Good Samaritan’ blocking and screening of offensive material”) suggests that section 230
provides immunity for a negligence action based upon the defendant’s failure to supervise
its employee. The Seventh Circuit noted that the caption of section 230(c) refers simply to
protections for those who block and screen offensive material and the text of subsection
230(c)(1) does not mention immunity or any synonym. GTE Corp., 347 F.3d at 659-60.
Moreover, the statutory goal of encouraging the filtering and screening of offensive material
would be undermined if ICS users and providers could expect immunity even if they were
indifferent to the content of the information they hosted or transmitted. GTE Corp., 347 F.3d
at 659-60 (it is unlikely that, when Congress enacted the CDA to protect Good Samaritans
from liability for filtering offensive content, Congress also intended to grant broad immunity
to ICS users or providers that did not screen any third-party content whatsoever). See also
Chicago Lawyer’s Committee for Civil Rights Under Law, Inc. v. Craigslist, Inc., 461 F.
Supp. 2d 681, 695-96 (N.D. Ill. 2006) (Congress enacted 230(c) to overrule Stratton
Oakmont, Inc. v. Prodigy Services Co., 1995 WL 323710 (N.Y. Sup. Ct. May 24, 1995),
which held that the provider of an online messaging board became a publisher when it
deleted some offensive third-party postings and, thus, was subject to publisher’s liability for
the defamatory postings it failed to remove).
¶ 41 Defendant’s interpretation of subsection 230(c)(1) expands its scope beyond its language.
We, like the Seventh Circuit, read subsection 230(c)(1) to do exactly what it says, and what
it says is that an ICS user or provider like defendant must not “be treated as the publisher or
speaker of any information provided by” someone else. 47 U.S.C. § 230(c)(1) (2000); see
Craigslist, Inc., 519 F.3d at 671. Accordingly, because subsection 230(c)(1) limits who may
be called the publisher or speaker of information that appears online, it could foreclose any
liability that depends on deeming the ICS user or provider a publisher or speaker, like a cause
of action for defamation, obscenity, or copyright infringement. See GTE Corp., 347 F.3d at
659-60; Stubhub!, Inc., 624 F.3d at 366.
¶ 42 The CDA was not enacted to be a complete shield for ICS users or providers against any
and all state law torts that involve the use of the Internet. Such an overly broad interpretation
of the CDA is inconsistent with the statutory purpose to encourage the restriction of
objectionable or inappropriate online material. Moreover, such a grant of blanket immunity
would lead to the anomalous result that occurred in the trial court below, i.e., plaintiff was
allowed to proceed with his negligent supervision claim against defendant where the
evidence of the employee’s threatening and harassing conduct arose from telephone calls, but
that same cause of action was barred where the evidence of the very same wrongful conduct
arose from e-mails and text messages. The CDA does not bar plaintiff’s cause of action
simply because defendant’s employee used the Internet access provided by defendant as one
vehicle to harass and threaten plaintiff.
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¶ 43 For purposes of defendant’s summary judgment motion, the parties agree that defendant’s
employee McGrew created the e-mails and text messages that were sent over the Internet. We
conclude, accordingly, that subsection 230(c)(1) of the CDA merely entitles defendant not
to be “the publisher or speaker” of those e-mails and text messages. 47 U.S.C. § 230(c)(1),
(f)(3) (2000). The remaining issue, then, is whether plaintiff’s cause of action treats
defendant as the publisher or speaker of the offensive information.
¶ 44 C. Treatment as a Publisher or Speaker
¶ 45 We find that section 230(c) of the CDA does not apply to plaintiff’s negligent
supervision cause of action because any issue concerning whether defendant acted like a
publisher or speaker of the offensive material is irrelevant to plaintiff’s pled claim. Plaintiff’s
negligent supervision cause of action does not require publishing or speaking as a critical
element, and holding defendant liable for its failure to supervise its employee after defendant
had received notice of the employee’s wrongful conduct does not treat defendant as if it were
the publisher or speaker of the alleged e-mails and texts.
¶ 46 Under the CDA, “what matters is not the name of the cause of action–defamation versus
negligence versus intentional infliction of emotional distress–what matters is whether the
cause of action inherently requires the court to treat the defendant as the ‘publisher or
speaker’ of content provided by another.” Barnes, 570 F.3d at 1101-02. In Barnes, the
plaintiff sued Yahoo!, Inc., an Internet service provider, for negligent undertaking and
promissory estoppel based on Yahoo’s failure to remove indecent profiles of the plaintiff that
were posted on Yahoo’s Web site by the plaintiff’s former boyfriend. The court held that the
CDA barred the plaintiff’s negligent undertaking claim because it was based on Yahoo’s
failed undertaking to remove or depublish the offensive profiles and, thus, was based on a
violated duty that was derived from Yahoo’s conduct as a publisher. Id. at 1103. However,
the court held that the CDA did not bar the plaintiff’s promissory estoppel claim because it
was based on a violated duty that sprang from an enforceable promise Yahoo had breached,
i.e., Yahoo’s promise to the plaintiff to promptly remove the offensive material from its Web
site. Id. at 1107-08.
¶ 47 Here, the duty that plaintiff alleges defendant has violated is derived from defendant’s
duty to supervise McGrew’s conduct as an employee of defendant. Defendant’s duty to
supervise its employee is distinct from any conduct like editing, monitoring or removing
offensive content published on the Internet. Contrary to defendant’s argument on appeal,
plaintiff’s theory of liability is not based on defendant allowing McGrew access to the
Internet to publish inappropriate and defamatory electronic messages and then failing to
either monitor his messages or prevent them from being sent or somehow remove them.
Rather, plaintiff, seeks to hold defendant liable for failing to investigate plaintiff’s complaint
about McGrew’s wrongful conduct, reprimand him, and timely suspend or terminate his
employment. Specifically, plaintiff alleged that he repeatedly notified defendant that
McGrew was using his position of employment with defendant and defendant’s equipment
and resources to harass and threaten plaintiff and his family, friends, and professional
colleagues. Clearly, the duty plaintiff alleges defendant violated is not derived from any
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behavior by defendant that is similar to publishing or speaking.
¶ 48 To support his argument that plaintiff’s claim is barred by the CDA, defendant cites
Delfino, 52 Cal. Rptr. 3d 376. In Delfino, the plaintiffs received anonymous threatening
messages that were sent over the Internet and were eventually traced by the FBI to an
employee of the defendant, a technology corporation. The defendant cooperated with the FBI
to determine the origin of the offensive communications, conducted its own internal
investigation to determine whether its employee had made any cyberthreats to the plaintiffs,
placed the employee on administrative leave while the matter was investigated, and then
terminated the employee when he admitted that he may have sent offensive messages by
logging onto the Internet at work. Id. at 385. The plaintiffs sued the defendant and the
employee, alleging intentional and negligent infliction of emotional distress, ratification,
respondeat superior, and negligent supervision/retention of an employee. The reviewing
court affirmed the trial court’s grant of summary judgment in favor of the defendant, holding
that the defendant was entitled to CDA immunity because it was an ICS and the plaintiffs’
cause of action treated the defendant as the speaker or publisher of its employee’s
cyberthreats. Id. at 392.
¶ 49 The Delfino court also held that, “even if plaintiffs’ claims were not barred under section
230(c)(1)” of the CDA, summary judgment was nonetheless proper because the plaintiffs
failed to make a prima facie showing on their claims against the defendant. Id. Relevant to
the appeal before us, the Delfino court found the plaintiffs’ negligent supervision theory of
liability failed because the existence of a legal duty owed to the plaintiffs was doubtful where
there was no evidence that the employee’s cyberthreats were in any way connected with his
employment. Id. at 398. Furthermore, the facts did not suggest that the defendant knew or
had reason to suspect that its employee was engaged in improper on-the-job conduct. Id. at
399. In addition, there was no evidence that the employee used the defendant’s computer
system to threaten the plaintiffs after the defendant conducted its internal investigation. Id.¶ 50 As discussed above, we do not follow the holdings of the courts that have interpreted
section 230(c)(1) as granting blanket immunity to an ICS user or provider from any cause of
action involving content posted on or transmitted over the Internet by a third party. In
Delfino, the court’s analysis of the scope of immunity under section 230(c)(1) was primarily
confined to the context of the plaintiffs’ intentional and negligent infliction of emotional
distress claims, which were similar to claims for defamation and did seek to hold the
defendant liable for conduct derived from the publication of the offensive information.
Accordingly, Delfino’s conclusion that the CDA’s immunity bars a negligent supervision
claim lacks analysis and is not persuasive. Finally, Delfino’s alternative analysis concerning
the plaintiffs’ failure to make a prima facie showing to support their negligent supervision
claim is not relevant to the appeal before us. The facts pled by plaintiff do not treat defendant
as the publisher of McGrew’s communications, and plaintiff has alleged that defendant,
unlike the employer in Delfino, failed to take any action to address its employee’s threats and
misuse of his position of employment after plaintiff had informed defendant about the
employee’s misconduct.
¶ 51 Subsection (c)(1) of the CDA limits who may be called the publisher of information that
appears online, and plaintiff’s negligent supervision cause of action does not depend on who
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published McGrew’s offensive information. Consequently section 230(c) of the CDA does
not bar plaintiff’s cause of action.
¶ 52 III. CONCLUSION
¶ 53 We reverse the trial court’s award of summary judgment in favor of defendant and
remand for further proceedings.
¶ 54 Reversed and remanded.
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