Yesterday,
the Sixth District filed an opinion that found an employer immune from state
law tort claims under the Communications Decency Act of 1996 (CDA). The plaintiffs alleged that an Agilent
employee had used Agilent’s computers to send threatening email messages to the
plaintiffs, and sought damages from Agilent for intentional and negligent
infliction of emotional distress. Agilent successfully brought a motion for summary judgment, claiming
immunity under the CDA, which plaintiffs appealed.
Under the
CDA, a defendant has immunity when: 1) the defendant is a provider or user of
an interactive computer service; 2) the cause of action treats the defendant as
a publisher or speaker of information; and 3) the information at issue is
provided by another information content provider. 47 U.S.C. 230(c)(1). Because plaintiffs did not dispute that the
Agilent employee was the “information content provider,” the court in Delfino
focused on the following two questions in its application of the CDA. First, the court asked whether Agilent was a “provider
of an interactive computer service.” Second, the court asked whether plaintiffs’ state law claims for
negligent and intentional infliction of emotional distress treated Agilent as a
publisher or speaker of the information at issue.
Addressing
the first question, the court stated that it was unaware of another opinion
that addressed the issue of whether a corporate computer network qualifies an “interactive
computer service” under the CDA. The
court first compared the approaches used by various federal circuits and California state courts,
and noted that courts have broadly defined the term to encompass entities other
than ISPs. The court also surveyed
academic sources, and noted that several journal articles concluded that
employers, like ISPs, should be covered by the CDA’s immunity provisions. Ultimately, the court found that employers
who provide employees access to the internet meet the CDA’s definition of a
“provider of an interactive computer service.”
Addressing
the second question, the court first noted that most cases addressing the scope
of CDA immunity under section 230 involve defamation. However, the court noted that some cases had
applied CDA immunity to claims of intentional infliction emotional
distress. In addition, the court cited a California opinion from the First District had applied CDA immunity to claims of nuisance,
premises liability, and a taxpayer suit under CCP section 526a. The court found further support for the
proposition that CDA immunity applies to civil claims generally. Without further elaboration, or a statement
of the exact claims CDA immunity applies to, the court held that plaintiffs’
claims of negligent and intentional infliction of emotional distress treated
Agilent as “a publisher or speaker of the information at issue” under the
CDA.
The court’s
opinion in Delfino seems part of a trend, where courts will broadly interpret
the CDA’s immunity provisions in section 230 to limit plaintiffs’ ability to
bring state law tort claims against any entity that provides a means for
transmission of tortuous electronic communications. However, the opinion in Delfino resulted, at
least in part, from the plaintiffs’ inability to provide a sufficient rebuttal
to the evidence offered by Agilent in its summary judgment motion. It remains to be seen if the CDA’s immunity
provisions will be applied as broadly in a case where the facts are more
favorable to plaintiffs seeking to overcome an assertion of immunity under the
CDA.