## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

Lansin g v. South west Airl ines Co. , 2012 IL App (1st) 101164

Appellate Court Caption GRE GG L ANSI NG, Plaintiff-Appellant, v. SOUTHWEST AI RL I NES COMPANY, a F oreig n Corporation, De fenda nt-Appellee

.

District & N o. First District, Six th Division Docke t No. 1-10-1164

Filed J une 8, 2012

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) T h e t ri al court err ed in enter ing summary judgme nt for defenda nt in an action alleg ing defe ndant wa s neg lige nt in supervising one of its employ ees who used defe ndant’s computer, Interne t and telephone fac iliti es to hara ss and threaten plaintiff with e-ma ils and text messag es,

n o t wi t hstanding defe ndant’s contention that section 230 of the Communi cations Dec ency Act g ave defe ndant im munity
, since section 230 did not apply

wher e the c omplaint did not alleg e defe ndant was the publisher of its employ ee’ s communications, plaintiff alleg ed defe ndant failed to addre ss the employ ee’ s threats and misus e of his employ ment afte r being informed of the mi s co n duct, and the neg lige nt supervision claim did not depend on who published the offe nsive information.

Dec ision Under Review Appea l from the Circuit Court of Cook County
, No. 06-L -8221; the Hon. Kathy M. Flana g an, Judge, pr esiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Be setzny L aw, P.C. (Ke vin S. Be setzny , of counsel), and L eslie J

. Rosen, both of Chicag o, for a

ppellant.

Matthew T. Walsh and Coz en O’Connor, both of Chicag o, for appellee

.

Panel J USTI CE L AMPKI N delivere d the judgme nt of the court, with opinion. Presiding J ustice R. Gordon and Ju s tice Gar cia concur red in the judgme nt and opinion.

OP INION

¶ 1 Plaintiff Gre g g L ansing sued d ef en d an t S o u t h west Airlines Company for ne g lige nt supervision of its employ ee. Plaintiff alleg ed that he notified defe ndant that its employ ee was threatening and hara ssing him but defe ndant failed to supervise the employ ee and take steps to stop his misconduct. The alleg ed misconduct included the employ ee’ s use of defe ndant’s computer, Interne t and telephone fac iliti es to send hara ssing and threatening e-ma ils and text messag es. ¶ 2 The trial court g rante d summary judgme nt in favor of defe ndant based on a finding that section 230 of the Communi cations Dec ency Act of 1996 (CDA) (47 U.S.C. § 230 (2000)) aff orded defe ndant immunit y fr o m p laintiff’s claims that arose from the e-ma ils and text messag es. Plaintiff appea led, arguing that the CDA was i n appli cable beca use his cause of action did not treat defe ndant as the publ isher or speake r of the o ff en s i v e e-ma ils and tex t messag es but, rathe r, was based on defe ndant’s fa i l u re t o supervise its employ ee afte r defe ndant had r ece ived notice of the employ ee’ s misconduct. ¶ 3 For

the re asons that follow, we reve rse the judg ment of the trial c ourt.

¶ 4 I . BA CKGROUND ¶ 5 I n Au gu st 2006, plaintiff filed a two-count complaint ag ainst defe ndant S o u t h we s t Airlines Company
, alleg ing direc t neg lige nce and vicar ious liability /ratification. Def

endant filed a motion to dism i s s t h e compl aint pursuant to section 2-615 of the Code of Civil Procedur e (Code) (735 I L CS 5/2-615 (West 2006)) for fa ilure to proper ly plead a cause of action. ¶ 6 In J une 2007, plaintiff filed a fi rs t am ended complaint, which alleg ed that defe ndant: failed to adequately supervise i t s employ ee, Thomas McGre w; allowed McGre w to use defe ndant’s computer, Interne t a nd telephone fac iliti es to thr eate n and hara ss plaintiff; and failed to take appropriate disciplinary action ag ainst McGre w despit e noti ce from pl aintiff about McGr ew’ s misconduct. ¶ 7 In Fe b ruary 2008, defe ndant fil ed a motion for summ ary judgme nt pursuant to s ection

-2-2-1005(e ) of the Code (735 I L CS 5/2-1005(e) (West 2008)), asser ting, inter alia
, that section 230 of the CD A pree mpted plaintiff’s state law claim and g ave defe ndant immunit y from liability for plaintiff’ s alleg ed neg lige nce c laim. ¶ 8 In October 2008, the trial court gra n t ed d ef en dant’s motion for summary judgme nt, finding that defe ndant was aff orded immunity

under the CDA for the claims arisingout of McGre w’s use of the Interne t becaus e defe ndant was a provider or user of an interac tive computer service and would be deeme d the publisher of the h ar as s i n g e-ma ils and text messag es at issue in plaintiff’s cause of action. The trial court noted, howeve r, that the issue of def endant’ s liabilit y

for the ha

rassingtelephone c alls remaine d pending

. ¶ 9 In Dec ember 2008, defe ndant moved for summary judgme nt pursuant t o s ec t i o n 2

- 1005(e) of the Code, asser ting, inter alia
, that plaintiff could not prove that McGre w made
any threatening telephone calls from one of defe nd an t ’s telephones or while under the supervision of def

endant. ¶ 10 In J une 2009, plaintiff filed his second amende d complaint, whi ch s o u gh t d amage s agai n s t d efe ndant based on its alleg ed neg lige nt failure –despite repe ated notice from plaintiff–to stop McGre w, who was a flig ht attendant and supervisor employ ed by defe ndant, from using his position with defe ndant and defe ndant’s resour ces to threat en and hara ss plaintiff and his friends, family members and profe ssional colleagues. Specifica lly
, plaintiff alleg ed that McGre w met plaintiff’s friend on a Southwest Airlines flig ht in J une of 2004 and then perc eived plaintiff as a rival to McGre w’s relationship with that friend. M cG rew , as defe ndant’s employ ee, had acc ess to defe ndant’s office s, network, computer terminals, work stations, telephone fac iliti es, customer data information, and busine s s c a ll in g c a r d s , a n d a cell phone provide d by

defe ndant. ¶ 11 Plaintiff also alleg ed that McGre w, from J une 2004 thr o u gh August 2006, used his acc ess to defe ndant’ s r e source s to make hara ssing telephone calls and send over 1,000 hara ssing and threatening text messag es or e-ma ils to plaintiff. Acc ording to plaintiff, McGre w threatened
t h at , as a supervisor, he knew when people made rese rvations on his flig hts and wou l d
preve nt plaintiff and his family members from flying by placing them on terror ism “no fly ” lists with defe ndant and its aff iliated airlines. Fur

ther, McGre w emphasized his position and authority with defe ndant, threatened to “haunt” and “complete ly ruin” plaintiff, and asser ted that no one would believe any complaints plaintiff might lodge ag ains t M cG re w. As time
prog resse d, McGre w’s messag es and e-ma ils beca me incre asing ly viole n t , m enti oned plaintiff’s family members by name, and wer e transmitted direc tly to pl ai n t i ff’s family members a

nd profe ssional colleagues. ¶ 12 In addition, plaintiff alleg ed that in April of 2005 and J anuar y , Marc h, April and May of 2006, he contac ted defe ndant’s customer relations depar tment, repor

ted McGrew ’s hara ssment and reque sted that defe ndant take measure s to stop McGre w’s wrong ful conduct and hara ssment. Despite that notice, howeve r, McGre w’s wrong ful conduct and hara ssment continued until his employ ment with defe ndant was terminated on August 22, 2006. Plaintiff

asser ted that, as a result of McGre w’s conduct and defe ndant’s failure to adequately supervise him, plaintiff chang ed his te lephone number sever al times in an attempt to avoid McGre w’s hara ssment; was ostracized by his family members, friends and profes s i o nal

-3-colleagues; and suff ere d embar

rassment, humiliation, distress and anxiety

. ¶ 13 In J uly 2009, defe ndant filed a motion under section 2-615 of the Code (735 I L CS 5/ 2- 615 (West 2008)) to strike cer tain alleg ations and dismiss plaintiff’s s econd amende d complaint. Def

endant arg

ued that plaintiff ignor ed the trial court’s October 2008 ruling that the CDA pree mpted plaintiff’s claims that arose from the e-ma ils or text messag es McGre w alleg edly sent to pla intiff. Def endant also reque sted sanctions pursuant to I llinois Supreme Court Rule 137 (ef

f. Fe b. 1, 1994), ass er t i ng that plaintiff knew his claim of neg lige nt supervision was neither well-g rounded in fac t nor supported by exis t i ng law and included alleg ation s t h at disreg arde d the trial court’s October 2008 ruling conce rning pree mption under the CDA. ¶ 14 In August 2009, plaintiff m o v ed t h e t ri al co urt to rec onsider its October 2008 ruling about defe ndant’s immunit y under the CDA. Plaintiff argued, inter alia
, that no I llinois state

or fede ral court interpre ted the immunit y aff orded by the CDA so b ro ad l y and plaintiff’s
neg lige nt supervision cause of action did not treat defe ndant as a publisher of McGre w’s emails and text s. ¶ 15 In September 2009, the trial court denied plaintiff’s motion for rec onsideration, g rante d defe ndant’s motion to strike and dismiss plaintiff’s second amende d complaint, and denied defe ndant’s motion for Rule 137 sanctions. The trial court g rante d plaintiff leave to file a third amende d complaint. ¶ 16 In November 2009, plaintiff filed a third amende d complaint, which m ad e t h e s am e alleg ations that wer e set forth in his second amende d co m plaint. In the third amende d complaint, plaintiff ref

ere nced and attache d additional exhibi ts and emphasize d cer tain alleg ations conce rning McGre w’s statements about his employ ment and posit ion with defe ndant. Plaintiff elec ted to stand on his third amended c omplaint. ¶ 17 In April 2010, the t rial court held t hat i ts October 2008 g rant of s u m m ar y judgme nt in favor of defe ndant with reg ard to the CDA stood as the trial court’s ruling on plaintiff’s third amende d complaint. Acc ording ly
, the trial court enter ed summary judgme nt in favor of defe ndant and ag ainst plaintiff on the third amende d complaint. The trial c ourt deter mined
t h at t h ere was no just rea son to delay the enfor ceme nt or appea l of its summary judgme nt ruling , and plaintiff timely appea led.

¶ 18 I I . ANALYSI S ¶ 19 Be fore addre ssing the merits of plaintiff’s appea l, we addre ss defe ndant’s argument that plaintiff has failed to prese rve for revie w his argument that his lawsuit is outside the purview of the CDA beca

use it is not based o n t re at ing defe ndant as the publisher of the offe nsive materia l but, rathe r, is based on defe ndant’s failure to act on plaintiff’s complaints about its employ ee’ s misconduct. ¶ 20 Def

endant’ s argument lacks m er i t

. Ac co rd i n g t o t h e re co rd
, p laintiff’s ame nded complaints clea

rly asser ted as the basis of his neg lige nt supervision claim defe ndant’s failure
to supervise its employ ee and stop his campa ign ag ainst plaintiff afte r plaintiff had notified defe ndant of the employ ee’ s h arassing and threatening conduct. Plaintiff also arg ued this claim to the trial cour t b el o w i n response to defe ndant’s motion for summary judgme nt.

-4-Contrary to defe ndant’s asser tion on appea l, plai n tiff’s motion for rec onsideration did not raise a new argument but, r ather
, reiter ated the basis of his c laim ag ainst defe ndant as pled in h i s am en ded complaint and argued that the trial court err oneously extended the CDA’s immunit y provision to bar plaintiff’s ple d claim. ¶ 21 We revie w de novo the t ri al co u rt ’s g rant of summary judgme nt. Anderson v. AlbertoCu l ver USA, Inc.
, 317 I ll. App. 3d 1104, 1110 (2000). Summary judge ment is a “dra st i c

means of disposing of litigation and there fore should be allowed only when the rig ht of the moving party is clea

r and fre e from doubt.” Purtill v. Hess
, 111 I ll. 2d 229, 240 (1986). “In deter mining a summary judgme nt motion, the pleadings, aff idavits, depositions and admissions on file must be construed strictly ag ainst the moving party and liberally in favor of the opponent.” Anderson
, 317 I ll. App. 3d at 1110. Reversa l of a g rant of summary j u dg ment is war

rante d wher e, on revie w, a materia l issue of fac t or an inacc urate interpre tation of law e x ists. Id

. ¶ 22 I n a ca u se of action for neg lige nt supervision, the plaintiff must establish that (1) t h e employ er ha d a duty

to supe rvise its e mploy ee; (2) the e mploy er ne g lige ntly supervised its employ ee; and (3) such neg ligen ce p roxi mately cause d the plaintiff’s injuries. Mueller v. Community Consolidat ed School District 54
, 2 8 7 I l l

. App. 3d 337, 342-43 (1997). The exis tence of a duty is a question of law for the court to de cide, and the issues of brea ch and proxi mate cause are questions of fac t for the t ri er of fac t, provided that there is a g enuine issue of mater ial fac t reg ardingthose issues. Anderson , 317 I ll. App. 3d at 1111. ¶ 23 Def

endant contends that subsection 230(c) (1) of the CDA (47 U.S.C. § 230(c) (1) ( 2000)) rende rs it immune from liability in plaintiff’s neg lige nt supervision cause of action. The trial
court g rante d defe ndant’s motion for summary judgme nt, finding that the CDA protec ted defe ndant from liability as a matter of law. P l ai ntiff argues that any immunit y under subsection 230(c) (1) of the CDA does not apply to his neg lige nt supervision cause of action and that, eve n if it did, defenda nt does not meet the ter

ms to qualify

for suc h immunit y

. ¶ 24 Section 230 of the CDA, which is entitled “Protec tion for private blocking and scre ening of offe nsive materia l,” protec ts cer tain Interne t-based actor s from cer tain kinds of lawsuits. 47 U.S.C. § 230 (2000). When Cong ress enac ted section 230 of the CDA, it found that the rapidly developing arr ay of Interne t and other interac tive computer service s flourished, to the benef it of all Am ericans, with a minimum of g overnme nt regulation and Americ ans incre asing ly relied on interac tive media for a variety of pol itical, educational, cu l t u ra l and
enter tainment service s. 47 U.S.C. § 230(a) (2000). W hile Congr ess s oug h t t o p romote t he conti nued development of the Interne t and prese rve the fre e marke t that exis ted o n i t , Congr ess also wanted to encour ag e the development of techn o l o gy that maxi miz ed user control over the information that individuals, families and schools rec eived on the Interne t, including technolog y that empowered pare nts to restric t their children’ s acc ess to objectionable or

inappropriate online mater ial. 47 U.S.C. § 230(b) (2000). ¶ 25 Acc ording ly
, Congr ess provided, under subsection (c)
, which is entitled “Protec tion f or ‘Good Samar itan’ blockingand scr eeningof off ensive mate rial,” a s follows: “(1) Trea tment of publisher or spe aker
No provider or user of an interac tive computer service sh al l be treated as the

-5-publish er o r s peake r of any information provided by another information content provider. (2) Civil liabili ty No provider or user of an interac tive computer service shall be held liable on acc ount of– (A) any action voluntarily taken in g ood faith to restric t acc ess to or availability of materia l that the provider or user considers to be obscene
, lewd, lascivious, filthy
, excessively violent, hara s s ing, or otherwise objectionable, whether or not such materia l is constitut ionally protec ted; or (B ) any action taken to enable or make available to information content providers

or others the t ec h n ical means to restric t acc ess to materia l descr ibed in para g raph (1).” 47 U.S.C. § 230(c) (2000)

. An interac tive computer service provider must, when it enter s an ag ree ment with a customer for the provision of i ntera ct i v e computer service
, notify the custom er that pare ntal control protec tions are c ommercia lly available . 47 U.S.C. § 230(d) (2000). ¶ 26 Concerning its eff ect on other laws, section 230 of t he C DA shall not be co n s t ru ed to: impair the enfor ceme nt of any fede ral criminal statute and cer tain specifie d fede ral statutes that conce rn the prohibition of obscene or hara s s i n g telephone calls, the restric tion of childre n ’s ac cess to harmful materia l on the World Wide Web, obscenity
, and sexual exploi tation of children (47 U.S.C. § 230(e) (1) (2000)) ; limit or expand a ny law perta ining
to intellectual proper

ty (47 U.S.C. § 230(e) (2) (2000)) ; limit the application of the Electronic Communi cations Privacy Act of 1986 (18 U.S.C. § 2510 (2000)) or any simil ar state law (47 U. S

. C

. § 230(e) (4) (2000)) ; or preve nt any state from enfor cing any state law that i s consistent wi th section 230 (47 U.S.C. § 230(e) (3) (2000))

. Fur thermore
, “[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 ‘intera ctive computer service ’ mean s an y i n fo rm ati on service
, sy stem, or

acc ess softwar e p ro v i d er t hat provides or enable s computer acc ess by multipl e users to a computer serve r, i n cl u d i n g specific ally a service or sy stem that provides acc ess to the Interne t and su ch sy stems operated or service s offe red by libraries or educational instit utions.” 47 U.S.C. § 230(f)(2) (2000). ¶ 28 “The term ‘information content provider’ means any person or entity that is r esponsible, in whole or in p art, for the cre ation or development of information provided throug h the Interne t or any

other intera ctive computer service .” 47 U.S.C. § 230(f)( 3) (2000)

. ¶ 29 When interpre ting a fede ral statute, state courts should g ener ally follow the decisions of fede ral courts to ensure that the statutory scheme is uniformly applied. W ilson v. Norfolk & W estern Ry. Co.
, 187 I ll. 2d 369, 374 (1999). When fede ral case s conflict or are inconsistent with respe ct to a g iven proposition, and no United S t at es S up reme Court case direc tly addre sses the issue, we will follow the decision that is more “re asonable and lo gi ca l ” an d

more consistent with both the statutory purpose and Supreme Court prec edent. Id. at 381-82. Also, beca

use I llinois fede ral district courts are bound by Seventh Circuit prec edent, we tend to g ive g reater we ight to Seventh Circuit ca ses to “avoid[ ] t he anoma lous situation of two

-6-contra ry results being obtainable depending on wher e the case is filed in I llinois .” Id. at 383 (“[W] ere we to adopt a rule contra ry to that of the Seventh Circuit, *** th e v i ab i l i t y o f a claim [under a g iven fede ral statute] could turn on whether the action was filed in fede ral or state court.” ). T h es e ar e n ot unyielding rules, howeve r; wher e there is a split of authority
among the fede ral circ uit courts of appea l and the Supreme Court has not ruled on the issue,

we are not require d to follow fede ral case s, even those from the Seventh Circuit, that appea r wrong ly decide d. Bowman v. American River Transport ation Co.
, 217 I ll. 2d 75, 91 (2005). ¶ 30 In analy

zing the scope of section 230(c) (1), the plain meaning of the statute is conclusive unless the l iteral application of t he st atute will produce a result demonstrably at odds with the intentions of its draf

ters. See United States v. Balint
, 201 F.3d 928, 932-33 (7th Cir. 2000). “We look beyond the ex p ress languag e of a statute only wher e such languag e is ambig uous, or wher e a literal interpre tation would lead to absurd results or thwart the g oals of the statutory scheme .” Merrill Lynch, Pierce

, Fenne r & Smith, Inc. v. Lauer
, 49 F.3d 323, 326-27 (7th Cir. 1995). A court’s interpre tation is guided n o t j ust by a single sentenc e or clause , but by

the languag e of the whole law a nd its poli cy

. Balint , 201 F.3d at 932-33. ¶ 31 Def

endant contends that it is entitled to immunit y under the CDA from plaintiff’s ca use of action beca

use (1) defe ndant is aff

orded broad immunit y as a provider or user of an interac t i v e computer service (I CS); (2) plaintiff’s cause of action treats defe ndant as the publisher or speake r of the offe nsive communications; and (3) a third p ar t y , M cGr ew, authore d the offe nsive communications.

¶ 32 A. Providers or U sers of a n Intera ctive Computer Servic e ¶ 33 First, we consider whether defe ndant qualifies as a p ro v i d er o r user of an I CS, which
term i s d ef

i n ed i n section 230(f) (2) of the CDA. Plaintiff argues that defe ndant is a

commerc ial air trave l provider, not an Interne t service provider, and when Congr ess enac ted the CDA in 1996, it did not i ntend to include within the conc ept of a n I CS employ ers who
g ave their employ ees acc ess to the Interne t for the purpose of their work. In 1996, employ ers did n o t u t iliz e the Interne t in their day -to-day operations, and the languag e of the CDA,

acc ording to plaintiff, indicates t h at it was orig inally tailored for traditional providers of Interne t and e- mail service s, such as AO L , CompuS erve , Prodigy and Ea rthlink. ¶ 34 Def

endant respon d s t h at t h e h i s t o ry surrounding the CDA indicates that Congr ess intended to protec t all Interne t service providers, including employ ers beca use they provide a “front end to the I nterne t.” Defenda nt cites a statement in the C ong ressional Record t hat

was mad e when section 230 was offe red as an amendment to the proposed CDA. Specifica lly
, Represe ntative Christopher Cox explained that t h e amendment would

acc omplish two things. In addition to establishing the policy that Congr ess did not want the fede ral g overnme nt to regulate Interne t content, the ame ndment would also: “prote ct computer Good Samaritans, online s ervic e providers, anyone who provides a front end to the Interne t, let us say , who takes steps to s cr een indece ncy and offe nsive materia l for their customers. I t will protec t them from taking on liability .” 141 Cong. Rec. H8460- 01, at 8470 (da ily ed. Aug . 4, 1995) (state ment of Rep. Cox ).
Def endant als o cit es the confe renc e repor t, which commented that the Good Samaritan

-7-protec tions from civil liability in section 230 of the CDA applied to all interac tive computer

service s, “including non-subscribe r sy stems such as those operated by many businesses for emplo y ee u s e. ” H.R

. Rep. No. 104-458, at 194 (1996) (Conf. Rep.), reprinted in 1996 U.S.C.C.A.N. 124, 208. ¶ 35 The pa

rties’ a rguments conce rningthe term Internet se rvice provider
, which is neither define d nor mentioned in section 230 of the CDA, are irrele vant to the issue befor e this court. The proper focus of the analy sis is whether defe ndant is a user or provider of an interactive computer service as define d 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 languag e of the statute and its broa d definition of an I CS,

an employ er like defe ndant qualifies as a provider or user of an I CS beca use defe ndant uses

an information sy stem or service that m u l t i p le users, like defe ndant’s employ ees, use to

acc ess the Interne t. See 4 7 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) (cor porate employ er that g ave its empl o y ees Interne t acc ess was an I CS provider) ; Kathleen R. v. City of Livermore
, 104 Cal. Rptr. 2d 772, 777 (Cal. Ct. App. 2001) (librar y providing Interne t acc ess to the public by

use of c omputers qualified a s an I CS provider or user).

¶ 37 B. Subsec tion 230(c)( 1) and B road Immunity ¶ 38 Def

endant contends that subsection 230(c) (1) of the CDA g rants an I CS user or provider b ro ad immunit y from any potential liability that is derive d from content post ed o n o r trans m i t t ed o ver the Interne t by a third party

. Def endant’ s contention has support in other
state courts and fede ral circ uits. See Delfino
, 52 Cal. Rptr. 3d at 390 (“it i s cl ea r that immunit y under section 230” applies to a varie ty of tort claims other than d ef am ation); Universal Communication Systems, Inc. v. Lycos, Inc.
, 478 F.3d 413, 419 (1st Cir. 2007) (In light of section 230’s policy conce rns, the court found that “sec tion 230 immunit y should be broadly construed.” ); Batzel v. Smith
, 333 F.3d 1018, 1031 n.19 (9th Cir. 2003) (desc ribing section 230 as cre ating a “broa d immunit y ”); Ben Ezra, W einstein, & Co. v. American Online Inc.
, 206 F.3d 980, 984-85 (10th Cir. 2000) (sec tion 230 “cr eate s a fede ral immunit y to any state law cause of action that would hold computer service providers liable for information orig inating with a thi rd party ”); Z er a n v. America Online, Inc.
, 129 F.3d 327, 328-30 (4th Cir. 1997) (“B y

its plain langua g e, § 230 cr eate s a fede ral immunit y to a ny cause of ac tion that would make service providers liable for information orig inating with a third-par ty user of the ser vice.” ). ¶ 39 Other courts, however, d i s agr ee wi t h o r q u es t i o n the proposition that subsection 230(c) ( 1 ) p r o v id e s s u c h b r o a d immunity from liability deriving from third-par ty content. City of Chicago v. Stubhub!

, Inc.
, 624 F.3d 363, 366 (7th Cir. 2010) (“subse ction (c) (1) does not

cre ate an ‘immunity ’ of any kind”); Barnes v. Y aho o !

, Inc.
, 570 F.3d 1096, 1100 (9th Cir. 2009) (“L ooking at the text [of subsection (c) (1)], it appea rs clea r that neither this subsection

nor any other decla

res a g ener al immun ity from liability deriving from third-par ty content ***.”); Chicago La wy e r

s ’ Com mittee

for Civil Rights Under Law, Inc. v. Craigsl ist, Inc.
, 519 F.3d 666, 669-71 (7th Cir. 2008) (questioning whether subsection 230(c) (1) cre ates any form

-8-of immunity); ac cord Doe v . GTE Corp. , 347 F.3d 655, 660 ( 7th Cir. 2003).

¶ 40 We ag ree with the analy sis of the Seventh Circuit that section 230(c) “as a whole ca nnot be understood” as g ranting blanket immunit y to an I CS user or provider from any civil cause of action that involves content posted o n o r t ra n s m itted over the Interne t by a third party

. Craigsl ist, Inc.
, 519 F.3d at 669, 671. Neither section 230’s titl e (“ P rotec tion for private blocking and scre ening of offe nsive materia l”) nor subsection (c) ’s caption (“Protec tion for ‘Good Samaritan’ blocking and scre ening of offe nsive materia l”) sug g ests that section 230 provides im munity

for a neg lige nce a ction based upon the defe ndant’s failure to supervise its employ ee. T he Seventh Circuit noted that the c aption of sec tion 230(c) r efe rs simply to protec tions for those who block and screen offe nsive materia l and the text of subsection 230(c) (1) d o es not mention immunity or any sy nony m. GTE Corp.
, 347 F.3d at 659-60. Moreove r, the statutory g oal of encour ag ing the filtering and scre ening of offe nsive materia l would be undermined if I CS users and provider s could expect immunit y even if they wer e indiffer ent to the content of the information they hosted or transmitted. GTE Corp.
, 347 F.3d at 659-60 (it is unlikely

that, when Cong ress enac ted the CDA to pr otect Good Samaritans from liability for filtering offe nsive content, Congr ess also intended to g rant broad immunit y to I CS users or providers that did not scre en an y third-par ty content whatsoever)

. See also Chicago Lawyer’s Committee for Civil Rights Under Law, Inc

. v. C r aigslist
, Inc.
, 461 F. Supp. 2 d 6 8 1
, 6 9 5-96 (N.D. I ll. 2006) (Cong ress enac ted 230(c) to overr ule Stratton Oakmont, Inc. v. Prodigy Servic es Co.
, 199 5 WL 323710 (N.Y. Sup. Ct. May 24, 1995), which held that the provider o f an online messag ing board beca me a publisher when it deleted some offe nsive third-par ty postings and, thus, was subject to publisher’s liability for the def amatory postings it failed to re move). ¶ 41 Def

en d a nt’ s in te r p r e ta ti o n o f s u bsection 230(c) (1) expands its scope beyond its langua g e. We, like the Seventh Circuit, rea d subsection 230(c) (1) to do exactly what it say s, and what it say s is that an I CS user or provider like defe ndant must not “be treated as the publisher or speake r of any information provided by ” someone else. 47 U.S.C. § 230(c) (1) (2000); see Craigsl ist, Inc.
, 519 F.3d at 671. Acc ording ly
, beca use subsection 230(c) (1) limit s who may be called the publisher or speake r of information that appea rs online, it could fore close any liability that depends on deeming the I CS user or provider a publisher or speake r, like a cause of action for defa

mation, obscenity
, or copy rig ht infring ement. See GTE Corp.
, 347 F.3d at 659-60; Stubhub! , Inc. , 624 F.3d at 366. ¶ 42 The CDA was not enac ted to be a complete shield for I CS users or providers ag ainst any and all state law torts that involve the use of the Interne t. Such an overly broad interpre tation of the CDA is inconsistent with the statutory purpose to encour ag e t h e re s triction of objectionable or inappropriate online materia l. Moreove r, such a g rant of blanket immunit y would lead to the anomalous result that occ urre d in the trial court be low, i.e. , plaintiff was allowed to proce ed with his neg lige nt supervision claim aga i n s t defe ndant wher e the evidenc e of the employ ee’ s threatening and hara ssing conduct arose from telep h o n e c a lls, but that same cause of action was barr ed wher e the evidenc e of the very same wrong ful conduct

arose from e-ma ils and t ex t m es s ag es. The CDA does not bar plaintiff’s cause of action simply beca

use defe ndant’s employee used the Interne t acc ess provided by defe ndant as one vehicle to ha

rass a nd threa ten plaintiff.

-9-¶ 43 F o r p u r poses of defe ndant’s summary judgme nt motion, the parti e s a gr e e th a t d e f e n d a nt’ s employ ee McGre w cre ated the e-ma ils and text messag es that wer e sent over the Interne t. We conclude , acc ording ly , that subsection 230(c )(1) of the CDA mer ely entitles defe ndant not
to be “the publisher or speake r” of those e-ma ils a nd text messag es. 47 U.S.C. § 230(c) (1), (f) (3) (2000). The rema ining issue, then, is whether plaintiff’s ca u se of action treats defe ndant as the publisher or speaker of

the offe nsive information.

¶ 44 C. Treatment as a Publisher or Speaker ¶ 45 We find that secti o n 2 3 0 (c ) o f t h e C DA d o es n o t apply to plaintiff’s neg lige nt supervision cause of action bec ause any issue conce rning whether defe ndant acte d like a publisher or speake r of the offe nsive materia l is irrele vant to plaintiff’s pled claim. Plaintiff’s
neg lige nt supervision cause of action does not require publishing or speaking as a critica l element, and holding defe ndant liable for its failure to supervise its employ ee afte r defe ndant had rec eived notice of the employ ee’ s wrong ful conduct does not trea t defe ndant as if it wer e the publisher or spe aker

of the a lleg ed e- mails and text s. ¶ 46 Under the CDA, “wha t matters is not the name of the cause of action–def amation versus neg lige nce versus intentional infliction of emotional distress–what m at t er s is whether the

cause of action inhere ntly require s the court t o t re at the defe ndant as the ‘publisher or speake r’ of content provided by another .” Barnes
, 570 F.3d at 1101-02. In B a r n es , the plaintiff sued Yahoo!
, Inc., an Interne t service provider, fo r neg lige nt undertaking and promissory estoppel based on Yahoo’ s failure to remove indece nt profiles of the plaintiff that

wer e posted on Yahoo’ s Web site by the plaintiff’s former boy friend. The court held that the CDA barr ed the plaintiff’s neg lige nt undertaking claim beca use it was based on Yahoo’ s failed undertaking to remove or depublish t he offensive profiles and, thus
, was based on a violated duty that was derive d from Yahoo’ s conduct as a publisher. Id

. at 1103. Howeve r, the court held that the CDA did not bar the plaintiff’s promissory estoppel claim beca use it

was based on a violated duty that sprang from an enfor cea ble promise Yahoo had brea ched, i.e.
, Yahoo’ s promise to the plaintiff to promptly remove the offe nsive materia l from its Web site. Id . at 1107-08. ¶ 47 Her e, the duty that plainti ff alleg es defendant has violated i s derive d from def endant’ s duty to supervise McGrew’ s conduct as an employ ee of defe ndant. Def endant’ s duty to

su p er v i s e its employ ee is distinct from any conduct like editing, monitoring or removing offe nsive content published on t h e I nterne t. Contrary to defe ndant’s argument on appea l, plaintiff’s theory of liability is not b as ed o n defe ndant allowing McGre w acc ess to the Inter n et to publish inappropriate and defa matory elec tronic messag es and then failing to either monitor his messag es or p re v en t t h em from being sent or somehow remove them. Rather, plaintiff, seeks to hold defe ndant liable for failing to investigate plaintiff’s complaint about McGre w’s wrongf

u l conduct, repr imand him, and timely suspend or terminate his empl oy ment. Specifica lly
, plaintiff alleg ed that he repe atedly notified defe ndant that McGre w was using his position of employ ment with defe ndant and defe ndant’s equipment and resou rc es t o hara ss and threaten plaintiff and his family
, friends, and profe ssional colleagues. Clearly
, the duty plaintiff alleg es defe ndant violated is n o t derive d from any

-10-behavior by defe ndant that is simil ar to publishing or speaking

. ¶ 48 T o s u p p o rt his argument that plaintiff’s claim is barr ed by the CDA, defe nd an t ci t es Delfin o , 5 2 Cal. Rptr. 3d 376. In Delfino
, the plaintiffs rec eived anony mous threa

tening
messag es that were s en t over the Interne t and wer e eventua lly trac ed by the FB I to an employ ee of the defe ndant, a technology corpor ation. The defe ndant cooper ated with the FB I
to deter mine the orig in of the offe nsive communicat ions, conducte d its own internal investigation to deter

mine whether its employ ee had made any cy berthre ats to the plaintiffs, place d t h e employ ee on administrative leave while the matter was investigated, and then terminated the employ ee when he admitted t h at h e m ay have sent offe nsive messag es by logg ing onto the Interne t at work. Id

. at 3 8 5

. T h e plaintiffs sued the defe ndant and the employ ee, alleg ing intentional and negli g ent infliction of emotional distress, ratification, respondeat superior
, and neg lige nt supervision/retention of an employ ee. The re v i ew ing
court aff irmed the trial court’s g rant of summary judgme nt in favor of the defe ndant, holding that the defe ndant was entitled to CDAimmunit y beca use it was an I CS and the plaintiffs’

cause of action treated the defe n d an t as the speake r or publisher of its employ ee’ s cy berthre ats. Id . at 392. ¶ 49 The Delfino court also held that, “eve n if plaintiffs’ claims wer e not barr ed under se ction 230(c) (1)” of the CDA, summary judgme nt was nonetheless proper beca use the plai n t i ffs failed to make a prima facie showing on their claims ag ainst the defe ndant. Id

. Relevant to the appea l be fore us, the Delfino court found the plaintiffs’ neg lige nt supervision theory of liability failed beca

use the exis tence of a leg al duty owed to the plaintiffs was doubtful wher e there was no evidenc e that the employ ee’ s cy berthre ats wer e in any way connec ted with his employ ment. Id

. at 398. Fur

thermore
, the facts did not s u gges t that the defendant knew or had rea son to suspect that its employ ee was eng ag ed in imprope r on-the-job conduct. Id

. at 399. In addition, there was no evidenc e that the employee used the defe ndant’s computer sy stem to thr eate n the plaintiffs afte r the defe ndant conducte d its interna l inve stigation. Id

. ¶ 50 As discussed above, we do not follow the holdi n gs o f t h e co urts that have inter prete d section 230(c) (1) as g ranting blanket immunit y to an I CS user or provider from any cause of action involving content posted on or tran s m i t t ed over the Interne t by a third party

. In Delfino
, the court’s analy sis of the scope of immunit y under section 230(c) (1) was primarily confine d to the context of the plaintiffs’ intentiona l an d neg lige nt infliction of emotional distress claims, which wer e simil ar to claims for defa m at i o n and did seek to hold the defe ndant liable for conduct derive d from the p u b l i ca t ion of the offe nsive information. Acc ording ly
, Delfino ’s conclusion that the CDA’s immuni t y bars a neg lige nt supervision claim lacks analy sis and is not persua sive. Finally
, Delfino ’s alternative analy sis conce rning the plaintiffs’ f

ailure to make a prima facie showing to suppor t the ir neg lige nt supervision claim is not rele vant to the appea l befor e us. The fac ts pled by plaintiff do not treat defe ndant

as the publisher of McGre w’s communications, and plaintiff has alleg ed that defe ndant, unlike the employ er in Delfino
, failed to take any action to addre ss its employ ee’ s threats and misuse of his position of employ ment afte r plaintiff had informed defe ndant about the employ ee’ s misconduct. ¶ 51 Subsection (c) (1) of the CDA limit s who may be called the publisher of information that
appea rs online, and plaintiff’s neg lige nt supervision cause of action does not depend on who

-11-published McGre w’s offe nsive information. Consequently section 230(c) of the CDA does

not bar plaintiff’ s cause of ac tion.

¶ 52 I I I . CONCL USI ON ¶ 53 We reve rse the trial court’s awa rd of summary judgme nt i n fa v o r o f d efe ndant and

rema nd for f urther pr ocee dings.

¶ 54 Reverse d and re manded.

-12-