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United States: State Appeals Court Concludes Employer Not Protected By CDA Section 230 In Employee Stalking Case, And Seems To Shrink The Statute Along The Way
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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