An Illinois state appeals court recently held that although an employer that provided network connectivity to its employees is an "interactive service provider" under Section 230 of the Communications Decency Act, the statute does not protect the employer from negligent supervision claims based upon the employee's alleged use of the network to communicate threats to a third party. The plaintiff claimed that he had notified the employer that the employee was threatening and harassing him, but the employer failed to take action to stop the employee's conduct. Lansing v. Southwest Airlines Co., 2012 IL App (1st) 101164 (Ill. Ct. App. June 8, 2012).
The appeals court held that Section 230 is inapplicable to the plaintiff's negligent supervision claim because an employer's duty to supervise its employee "is distinct from any conduct like editing, monitoring or removing offensive content published on the Internet." Viewed narrowly, as an opinion about employer liability for employee conduct, this rationale may make sense.
However, the Lansing court does not limit its analysis of CDA Section 230 to the employer-employee context. In statements that speak to the scope of CDA Section 230 generally, the Illinois court rejects a long line of federal court rulings that have construed the statute very broadly, in favor of the narrow view of the statute espoused by Judge Easterbrook of the Seventh Circuit in Doe v. GTE (7th Cir. 2003). Under his view, the statute would protect service providers from liability for decisions to remove third-party content, but would leave open the possibility of liability claims under state law for failure to remove such content.
The appeals court in Lansing expresses concern that the application of CDA Section 230 on the facts presented might produce what it views as an anomalous result, if the employer could potentially be held liable for the employee's alleged threats made on the telephone, but not for threats made by e-mail or text message. Under CDA Section 230, however, the law is different online, and the statute's application often results in inconsistent results between on-line and non-online scenarios. These results may sometimes be difficult to accept, precisely because they are different from the results that might obtain cases involving offline communications. CDA Section 230 deserves its reputation as the law that judges love to hate, but most judges are able to set aside their opinions on the wisdom of the Congressional policy it expresses, and reject attempts to narrow the protection it affords online service providers.
The "broad immunity" that Judge Easterbrook and the Lansing court question is a principle that online service providers have relied upon for years in structuring and conducting their online enterprises. A contraction of the statute in the manner that they suggest would create a very different business environment for online service providers that deal with user-generated content.
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