FOR PUBLICATION

ATTORNEYS FOR APPELLANT: ATTORNEY FOR APPELLEE 

 500 FESTIVAL, INC.: 

KEVIN W. BETZ RANDALL W. GRAFF 

SANDRA L. BLEVINS Kopka, Pinkus, Dolin, & Eads, PC 

JAMIE A. MADDOX Indianapolis, Indiana

Betz + Blevins 

Indianapolis, Indiana ATTORNEYS FOR APPELLEE 

 FEDERAL EXPRESS CORP.: 

 STEVEN E. SPRINGER 

 MARK D. GERTH 

 Kightlinger & Gray, LLP 

 Indianapolis, Indiana 

IN THE

COURT OF APPEALS OF INDIANA

JEFFREY M. MILLER and ) 

CYNTHIA S. MILLER, ) 

 ) 

 Appellants-Plaintiffs, ) 

 ) 

 vs. ) No. 49A02-1307-PL-619 

 ) 

FEDERAL EXPRESS CORPORATION and ) 

500 FESTIVAL, INC., ) 

 ) 

 Appellees-Defendants. ) 

APPEAL FROM THE MARION SUPERIOR COURT 

The Honorable Michael D. Keele, Judge 

Cause No. 49D07-1003-PL-014761 

April 3, 2014 

OPINION – FOR PUBLICATION 

MATHIAS, Judge 
2

Jeffrey M. Miller and Cynthia S. Miller (“the Millers”) appeal the Marion Superior 

Court’s grant of summary judgment in favor of Federal Express Corporation (“FedEx”) 

and 500 Festival, Inc. (“500 Festival”) on the Millers’ claim of defamation and 

intentional infliction of emotional distress. The Millers appeal, claiming: (1) that the 

Defendants failed to preserve evidence, and (2) that the Defendants are not immune from 

suit under the federal Communications Decency Act. 

We affirm. 

Facts and Procedural History

From 1994 until his retirement in 2008, Jeffrey Miller (“Miller”) was the president 

of Junior Achievement of Central Indiana (“JACI”). After his retirement, Miller acted as 

president of the Experiential Learning and Entrepreneurship Federation (“ELEF”), which 

is a separate organization from JACI, but which works with JACI. In the spring of 2008, 

Miller announced a joint project between JACI, ELEF, and Ivy Tech Community College 

(“Ivy Tech”), which provided for ELEF to construct a culinary school on JACI property 

which Ivy Tech would then lease. Construction on the building began in 2009, but was 

stopped in 2010 when the primary financial backers of the project stopped providing the 

necessary funds. This was allegedly due to defamatory statements made by Jennifer Burk 

(“Burk”) and Brian Payne (“Payne”), who are co-defendants in the Millers’ current 

action.1

 1

 Burk succeeded Miller as president of JACI, and Payne was the president of the Central Indiana 

Community Foundation, Inc. (“CICF”).
3

What happened next is the focus of the current controversy. On March 18, 2010, 

the Indianapolis Business Journal (“IBJ”) published an article on its website regarding the 

allegations and controversy surrounding the construction of the culinary school. Several 

comments regarding this article were posted to the IBJ website. The Millers allege that 

several of these comments were defamatory. 

One comment, posted by a user with the screen name “JA Fan” on March 19, 2010, 

read: 

The new CEO [Burk] has inherited a mess not of her doing. The former 

CEO [Miller] and finally-fired VP’s misuse (for their own personal gain) of 

funds that were dedicated to educating Indiana children are at the very least 

an embarrassment to the dedicated staff who have continued to push on, 

and most likely a criminal act. If you were a donor or sponsor in the last 

decade to these guys, an audit is definitely in order. Hang in there, Jennifer 

Burk!” 

Appellant’s App. pp. 82. 

On March 23, 2010, a user with the screen name “Really?” posted a comment 

which read in relevant part: 

Article- “ELEF is the owner (you would have to be to sign construction 

contracts worth millions) of the N. Keystone building and Junior 

Achievement’s partner in receiving the $3 million grant. That foundation 

exists solely to benefit (raise money for) Junior Achievement, and until 

recently, was overseen by Junior Achievement’s managers (Miller). Junior 

Achievement took on the culinary school project, under longtime CEO Jeff 

Miller (because in addition to educating Indiana children in business and 

financial responsibility, teaching adults to cook for others has long been 

part of the JA mission. Just call the national office and ask, I’m sure its 

true). He retired but continued to serve as president of the ELEF (money) 

through last year.” Article cont.- “Miller said his role last year was to raise 

additional donations for the $7 million culinary school project and oversee 

day-to-day construction activities.” Does this include paying the 

contractors? As the fundraiser and key money guy, probably has an eye on 

revenue and expenses. Article-“‘I was the project manager, but I didn’t 
4

have any communication about this stopping of money,’ he said.” 

Comment quote from other post-“what is so depressing and unfair is that 

the subcontractors were never told the funds were suspended and JACI, 

ELEF and CICF let them keep working.” Article-“The community 

foundation informed JA in writing on Nov. 24 that all future payments 

under the grant would be suspended until ‘issues’ were resolved.” 

Probably wasn’t the first or only communication. If they told JA, who did 

not own the building or sign the construction contracts, I’m pretty sure as a 

tenant with an interest in what’s happening to the building, they would 

notify the Landlord, President Miller (who did the deal to bring Ivy Tech to 

the building, who also took money to fund the construction, who was also 

the “project manager” responsible for day-to-day operations) that his 

project is going to be halted and his building left in a mess. Now a storied 

and critical organization is a mess in his wake. Was it the great philosopher, 

Steve Miller, who said, “Go on, take the money and run!”? Perhaps a 

relative? 

Appellant’s App. pp. 82-83. Another comment was posted on April 6, 2010,2 by 

someone using the online handle of “Concernd.” This person posted a comment that read, 

“These guys are crooks (Jeff Miller, Victor George and other parties) and have been 

robbing from our community using kids as there [sic] hook. I hope they go to jail!!!!” 

Appellant’s App. p. 84. 

During discovery, the Millers learned that the first two comments were made by 

Dave Wilson (“Wilson”), the vice president of corporate sponsorship at 500 Festival. He 

used a computer owned by 500 Festival and located at 500 Festival offices to make these 

comments. The IP address from which these comments were posted was assigned to 500 

Festival by AT&T, 500 Festival’s internet service provider (“ISP”). The third comment 

was made by an unknown person from an IP address assigned to FedEx. The IP address 

 2

 By the time of this comment, the Millers had already filed suit against Burk, Payne, and JACI. 
5

was not traceable to any specific user, but instead belonged to one of FedEx’s proxy 

servers which filtered internet traffic from tens of thousands of FedEx users. 

On February 25, 2011, the Millers amended their complaint to add 500 Festival 

and FedEx as defendants. On November 23, 2011, the Millers served FedEx with 

interrogatories and requests for production. FedEx objected to the scope of these 

discovery requests and sought a protective order, which the trial court denied. And after 

FedEx had responded to the Millers’ discovery, the Millers took issue with the adequacy 

of FedEx’s response. 

On February 21, 2013, FedEx filed a motion for summary judgment. 500 Festival 

filed a motion for summary judgment one week later, on February 28, 2013. The Millers 

responded to these motions on April 30, 2013, after having been granted an extension of 

time in which to reply. In their response, the Millers claimed that they had received 

inadequate discovery from 500 Festival. The Millers then filed a motion for sanctions 

against FedEx and 500 Festival on May 22, 2013, claiming that these defendants had 

spoliated evidence. The trial court held a hearing on the motions for summary judgment 

on May 22, 2013, and on July 1, 2013, entered summary judgment in favor of FedEx and 

500 Festival. The trial court entered a separate order on July 1, 2013, denying the Millers’

motion for sanctions against 500 Festival and entered a similar order denying the Millers’

motion for sanctions against FedEx on July 5, 2013. The Millers now appeal. 

Summary Judgment Standard of Review

Our standard for reviewing a trial court’s order granting a motion for summary 

judgment is well settled: a trial court should grant a motion for summary judgment only 
6

when the evidence shows that there is no genuine issue as to any material fact and that 

the moving party is entitled to a judgment as a matter of law. Altevogt v. Brand, 963 

N.E.2d 1146, 1150 (Ind. Ct. App. 2012) (citing Ind. Trial Rule 56(C)). The trial court’s 

grant of a motion for summary judgment comes to us cloaked with a presumption of 

validity. Id. “‘An appellate court reviewing a trial court summary judgment ruling 

likewise construes all facts and reasonable inferences in favor of the non-moving party 

and determines whether the moving party has shown from the designated evidentiary 

matter that there is no genuine issue as to any material fact and that it is entitled to 

judgment as a matter of law.’” Id. (quoting Dugan v. Mittal Steel USA Inc., 929 N.E.2d 

184, 186 (Ind. 2010)). However, a de novo standard of review applies where the dispute 

is one of law rather than fact. Id. On appeal, we examine only those materials designated 

to the trial court on the motion for summary judgment, and we must affirm the trial 

court’s entry of summary judgment if it can be sustained on any theory or basis in the 

record. Id. 

I. Preservation of Evidence

The Millers first claim that the trial court erred in granting summary judgment 

because both of the Defendants failed to preserve evidence for discovery. Specifically, 

the Millers refer to certain computer records or files that the Defendants had in their 

possession. As noted by the Millers, our supreme court has recognized that:

[I]ntentional destruction of potential evidence in order to disrupt or defeat 

another persons’s right of recovery is highly improper and cannot be 

justified. The intentional or negligent destruction or spoliation of evidence 

cannot be condoned and threatens the very integrity of our judicial system. 

There can be no truth, fairness, or justice in a civil action where relevant 
7

evidence has been destroyed before trial. Destroying evidence can destroy 

fairness and justice, for it increases the risk of an erroneous decision on the 

merits of the underlying cause of action. Destroying evidence can also 

increase the costs of litigation as parties attempt to reconstruct the 

destroyed evidence or to develop other evidence, which may be less 

accessible, less persuasive, or both. 

Gribben v. Wal-Mart Stores, Inc., 824 N.E.2d 349, 354 (Ind. 2005) (citations and internal 

quotations omitted). But there is no independent cause of action in Indiana for spoliation 

of evidence by a party to the suit. Id. at 355. Instead, Indiana trial courts have 

considerable discretion to respond to discovery violations with such sanctions “as are just”

under Trial Rule 37(B). Also, “intentional first-party spoliation of evidence may be used 

to establish an inference that the spoliated evidence was unfavorable to the party 

responsible.” Id. at 351. 

Here, in November 2010, before the Millers added FedEx as a defendant, they 

served FedEx with a non-party discovery request for information regarding the IP address 

that was used to post one of the comments on the IBJ website. FedEx responded to this 

request by informing the Millers that the IP address that had been used to post the 

comment to the IBJ website was that of a proxy server which filtered internet traffic for 

tens of thousands of users. FedEx also gave the Millers a copy of the FedEx document 

retention policy for its proxy servers’ logs. This policy explained that such archives are 

stored for one year. In January 2011, before FedEx was added as a defendant, the proxy 

server at issue was taken out of service by FedEx in the ordinary course of business. 

Importantly, the Millers did not thereafter ask FedEx to supplement this response or 

otherwise complain that the response was inadequate. Instead, the Millers amended their 
8

complaint to add FedEx as a defendant on February 25, 2011. The complaint, however, 

did not allege that the commenter was a FedEx employee, was authorized to post the 

comment, or posted the comment in the scope of his or her employment. 

By this time, however, the proxy server had been taken out of service. And the 

server logs from April 6, 2010, the date when the comment was posted to IBJ, were 

purged on April 6, 2011, shortly after FedEx was served with the Millers’ complaint but 

pursuant to the retention policy produced by FedEx to the Millers in third-party discovery. 

Thus, at the time the server logs were destroyed, FedEx had already responded to the 

Millers’ requests for non-party discovery, and the Millers had not complained of FedEx’s 

discovery responses. Moreover, FedEx has never denied that the IP address at issue was 

associated with its server. Nor had the Millers at that time requested that FedEx preserve 

the server logs. Under these facts and circumstances, we cannot say that the trial court 

erred by failing to sanction FedEx for failing to preserve the records of the proxy server. 

The Millers also complain, however, that FedEx failed to preserve any electronic 

records until November 15, 2012, which was over a year after FedEx had been added as a 

defendant. The Millers’ initial, non-party discovery requests were broad—effectively 

asking FedEx to search for documents relating to the Millers’ claims from all 290,000 

FedEx employees. FedEx objected to the breadth of these requests, and on July 11, 2012, 

sent correspondence to the Millers’ counsel asking for information to help narrow the 

discovery requests. The Millers did not respond. Eventually, the trial court ordered the

parties to meet and resolve the discovery issues after the Millers filed a motion for 

sanctions due to FedEx’s alleged failure to properly provide discovery. This was done on 
9

November 6 and November 15, 2012. Only then did the Millers limit the scope of their 

requests to seventeen current and former employees of FedEx who had volunteered for 

JACI. Thus, once the Millers narrowed their discovery requests to a reasonable scope, 

FedEx began to preserve records pertaining to these identified employees. Again, under 

these facts and circumstances, we cannot say that the trial court erred by failing to 

sanction FedEx for its responsiveness to the Millers’ discovery requests. 

With regard to 500 Festival, however, the situation was different. Relatively early

on in the discovery process, Wilson was known to be the employee who used 500 

Festival’s computer system to post the comments via his Yahoo account. And the Millers 

added Wilson as a defendant at the same time that they added 500 Festival. Thus, from 

the beginning of its involvement in this case, 500 Festival knew that one of its employees 

was also a defendant and had made the comments at the heart of the Millers’ claims. 

Despite this, 500 Festival made no efforts to preserve the contents of Wilson’s computer. 

In fact, 500 Festival replaced Wilson’s computer but failed to make a complete archival 

backup of the contents of the drive(s) on the computer. Instead, it simply relied on its 

policy that employees save documents to 500 Festival’s file server. It also instructed 

employees to backup any “computer specific” files to a shared drive on the server prior to 

the change of computers. 

Certainly, the better practice for 500 Festival would have been to preserve the 

contents of Wilson’s computer, otherwise known as placing a unilateral “litigation hold” 

on the computer and its contents. The seminal case in electronic discovery is Zubulake v. 

UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003), In Zubulake, Judge 
10

Scheindlin recognized the dilemmas posed by the nature of electronic documents, saying 

that a corporation, upon recognizing the threat of litigation, need not “preserve every 

shred of paper, every e-mail or electronic document, and every backup tape,” as such a 

rule would “cripple large corporations . . . that are almost always involved in litigation.” 

At the same time, anyone who anticipates being a party or is a party to a 

lawsuit must not destroy unique, relevant evidence that might be useful to 

an adversary. While a litigant is under no duty to keep or retain every 

document in its possession . . . it is under a duty to preserve what it knows, 

or reasonably should know, is relevant in the action, is reasonably 

calculated to lead to the discovery of admissible evidence, is reasonably 

likely to be requested during discovery and/or is the subject of a pending 

discovery request.

Id. (citation and internal quotation omitted). Further, “if a company can identify where 

particular employee documents are stored on backup tapes, then the tapes storing the 

documents of ‘key players’ to the existing or threatened litigation should be preserved if 

the information contained on those tapes is not otherwise available.” Id. at 218. Thus, 

after being added as a defendant and identifying co-defendant Wilson’s computer at issue 

in the present case, 500 Festival should have taken measures to preserve the contents of 

his computer. 

Still, 500 Festival notes that the Millers failed to send 500 Festival any request to 

place a “litigation hold” on the content of Wilson’s computer. See Reinbold v. Harris, 

IP00-0587-C-T/G, 2000 WL 1693792 (S.D. Ind. Nov. 7, 2000) (“Mere ownership of 

potential evidence, even with knowledge of its relevance to litigation, does not suffice to 

establish a duty to maintain such evidence.”). Again, if the Millers thought the content of 

Wilson’s computer was vital to their case, they could have specifically requested that 500 
11

Festival archive the content of Wilson’s computer. Thus, it appears that neither the 

Millers nor 500 Festival did all that they could have done and should have done in order 

to preserve the contents of Wilson’s computer. However, we need not pursue the 

discovery issues concerning the contents of the hard drive on Wilson’s computer, and we 

do not think that 500 Festival’s failure to preserve the contents of this computer required 

the trial court to deny summary judgment in favor of 500 Festival. Both of these issues 

are mooted by the fact that both FedEx and 500 Festival are immune from the claims 

brought by the Millers. 

II. Immunity Under The Communications Decency Act

The trial court granted summary judgment in favor of 500 Festival and FedEx 

based on its conclusion that these defendants were protected from liability by operation 

of the federal Communications Decency Act (“CDA”). On appeal, the Millers claim that 

the trial court’s conclusion was erroneous. Because this is strictly a question of law, our 

review is de novo. Altevogt, 963 N.E.2d at 1150. 

At issue here is Section 230 of the CDA, which provides: 

(a) Findings

The Congress finds the following:

(1) The rapidly developing array of Internet and other interactive 

computer services available to individual Americans represent an 

extraordinary advance in the availability of educational and 

informational resources to our citizens.

(2) These services offer users a great degree of control over the 

information that they receive, as well as the potential for even 

greater control in the future as technology develops.

(3) The Internet and other interactive computer services offer a forum 

for a true diversity of political discourse, unique opportunities for 

cultural development, and myriad avenues for intellectual activity.
12

(4) The Internet and other interactive computer services have flourished, 

to the benefit of all Americans, with a minimum of government 

regulation.

(5) Increasingly Americans are relying on interactive media for a variety 

of political, educational, cultural, and entertainment services. 

(b) Policy

It is the policy of the United States—

(1) to promote the continued development of the Internet and other 

interactive computer services and other interactive media;

(2) to preserve the vibrant and competitive free market that presently 

exists for the Internet and other interactive computer services, 

unfettered by Federal or State regulation;

(3) to encourage the development of technologies which maximize user 

control over what information is received by individuals, families, 

and schools who use the Internet and other interactive computer 

services;

(4) to remove disincentives for the development and utilization of 

blocking and filtering technologies that empower parents to restrict 

their children’s access to objectionable or inappropriate online 

material; and

(5) to ensure vigorous enforcement of Federal criminal laws to deter and 

punish trafficking in obscenity, stalking, and harassment by means 

of computer.

(c) Protection for “good samaritan” blocking and screening of offensive 

material

(1) Treatment of publisher or speaker

No provider or user of an interactive computer service shall be 

treated as the 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).
13

(d) Obligations of interactive computer service

A provider of interactive computer service shall, at the time of entering an 

agreement with a customer for the provision of interactive computer service 

and in a manner deemed appropriate by the provider, notify such customer 

that parental control protections (such as computer hardware, software, or 

filtering services) are commercially available that may assist the customer 

in limiting access to material that is harmful to minors. Such notice shall 

identify, or provide the customer with access to information identifying, 

current providers of such protections.

* * *

(f) Definitions

As used in this section:

(1) Internet

The term “Internet” means the international computer network of both 

Federal and non-Federal interoperable packet switched data networks.

(2) Interactive computer service

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.

(3) Information content provider

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 (1998) (bold emphasis added). 

In the leading case on Section 230 immunity, the federal Fourth Circuit Court of 

Appeals in Zeran v. Am. Online, Inc., 129 F.3d 327 (4th Cir. 1997), noted that:

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. Specifically, § 230 precludes courts 

from entertaining claims that would place a computer service provider in a 

publisher’s role. Thus, lawsuits seeking to hold a service provider liable for 

its exercise of a publisher’s traditional editorial functions—such as 
14

deciding whether to publish, withdraw, postpone or alter content—are 

barred. 

Id. at 330. The Zeran court also noted that the purpose of Section 230 immunity is not 

difficult to discern: 

Congress recognized the threat that tort-based lawsuits pose to freedom of 

speech in the new and burgeoning Internet medium. The imposition of tort 

liability on service providers for the communications of others represented, 

for Congress, simply another form of intrusive government regulation of 

speech. Section 230 was enacted, in part, to maintain the robust nature of 

Internet communication and, accordingly, to keep government interference 

in the medium to a minimum. 

Id. 

Thus, Congress made a policy choice not to deter harmful online speech through 

the separate route of imposing tort liability on companies that serve as intermediaries for 

other parties’ potentially injurious messages. Id. This is so because interactive computer 

services have millions of users, and the amount of information communicated via 

interactive computer services is “staggering.” Id. “The specter of tort liability in an area 

of such prolific speech would have an obvious chilling effect. It would be impossible for 

service providers to screen each of their millions of postings for possible problems.” Id. 

Congress considered the weight of the speech interests implicated and chose to immunize 

providers of interactive computer services to avoid any restrictive effect. Id. This does 

not mean, however, that the party who actually posts the defamatory message can escape 

liability. Id. But Congress made a policy choice not to deter harmful online speech 

through the separate route of imposing tort liability on companies that serve as 

intermediaries for other parties’ potentially injurious messages. Id. at 330-31. 
15

Other courts have adopted this broad reading of the protections afforded by 

Section 230(c). See, e.g., Doe v. MySpace, Inc., 528 F.3d 413, 418-19 (5th Cir. 2008) 

(holding that operator of social media website was protected by Section 230 from suit by 

minors who were sexually assaulted by men they met on the site); Carafano v. 

Metrosplash.com, Inc., 339 F.3d 1119, 1123-24 (9th Cir. 2003) (holding that an online 

dating service provider was not liable when an unidentified party posted a false online 

profile for a popular actress, leading her to receive sexually explicit phone calls, letters, 

and faxes at home); Batzel v. Smith, 333 F.3d 1018, 1030-31 (9th Cir. 2003) (concluding 

that operator of a museum security website was protected by Section 230 from suit 

brought by person allegedly defamed by email posted to the site and its email list because 

language of Section 230 confers immunity on both providers and users of interactive 

computer services); Green v. Am. Online (AOL), 318 F.3d 465, 471 (3d Cir. 2003) 

(holding that web-based service provider was protected by Section 230 from claim by 

user who claimed he received a computer virus from third party and endured derogatory 

comments directed at him by other users); Ben Ezra, Weinstein, & Co. v. Am. Online 

Inc., 206 F.3d 980, 984-86 (10th Cir. 2000) (holding that online service provider was 

immune from defamation claim based on inaccurate stock information). And even those 

courts which have not interpreted Section 230(c)’s protection as broadly as the Fourth 

Circuit in Zupan have still acknowledged that a provider of an interactive computer 

service cannot be liable as a publisher or speaker of information provided by someone 

else. See Chicago Lawyers’ Comm’n for Civil Rights Under Law, Inc. v. Craigslist, Inc., 

519 F.3d 666, 671 (7th Cir. 2008). 
16

Thus, the question before us is whether 500 Festival and FedEx qualify as 

providers of an “interactive computer service” for purposes of Section 230(c)(1). The 

Millers argue that neither 500 Festival nor FedEx provided an interactive computer 

service, but are instead employers providing computer services to their employees via 

third-party ISPs. 

Section 230(f)(2) defines an “interactive computer service” to mean “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.” The Millers acknowledge the case law 

that has extended Section 230 immunity to websites such as Google, Yahoo, and 

Microsoft, but claim that it does not extend to employers who provide access to their 

employees and others to the internet. The cases that have addressed this question, 

however, have decided otherwise. 

In Delfino v. Agilent Technologies, Inc., 52 Ca.Rptr.3d 376 (Ca. Ct. App. 2006), 

the plaintiffs sued the employer of a man they claimed had sent them threatening emails 

and messages posted to online bulletin boards. The trial court granted the employer’s 

motion for summary judgment, and the plaintiffs appealed. The California Court of 

Appeals noted that no case had yet held that a corporate employer was a provider of an 

“interactive computer service” for providing internet access to its employees. Id. at 389. 

The court noted, however, that several commentators had indicated that an employer who 

provides its employees with internet access through the employer’s internal computer 
17

system should be considered a provider of an interactive computer service for purposes of 

the CDA. See id. (citing Zion, Protecting the E–Marketplace of Ideas by Protecting 

Employers: Immunity for Employers Under Section 230 of the Communications Decency 

Act, 54 Fed. Comm. L.J. 493, 496 (2002); Garvey, The New Corporate Dilemma: 

Avoiding Liability in the Age of Internet Technology, 25 U. Dayton L.Rev. 133, 139 

(1999)). The California court also noted that “‘Internet resources and access are 

sufficiently important to many corporations and other employers that those employers 

link their office computer networks to the Internet and provide employees with direct or 

modem access to the office network (and thus to the Internet).’” Id. (quoting Am. Civil 

Liberties Union v. Reno, 929 F. Supp. 824, 832-833 (E.D. Pa. 1996), aff’d 521 U.S. 844 

(1997)). The Delfino court ultimately concluded that the employer in that case met the 

definition of a provider of an interactive computer service because “it ‘provide[d] or 

enable[d] computer access by multiple users [i.e., Agilent’s employees] to a computer 

server.’” Id. (quoting 47 U.S.C. § 230(f)(2)). 

The Illinois Appellate Court came to a similar conclusion in Lansing v. Sw. 

Airlines Co., 980 N.E.2d 630, 631 (Ill. App. Ct. 2012), appeal denied, 979 N.E.2d 878 

(Ill. 2012). In that case, the plaintiff sued the employer airline, claiming that it had 

negligently supervised an employee who sent threatening messages. The trial court 

granted summary judgment in favor of the airline, concluding that Section 230 of the 

CDA afforded it immunity from the plaintiff’s claims that arose from the emails and text 

messages sent over the internet. The plaintiff appealed and argued that the defendant was 

an airline, not an ISP, and that when Congress enacted the CDA in 1996, it did not intend 
18

to include within the definition of a provider of an interactive computer service those 

employers who gave their employees access to the Internet for the purpose of their work. 

Although the parties in Lansing focused their arguments on whether the airline was an 

ISP, the court observed that an ISP was neither mentioned nor defined by the CDA. 

Instead, the proper focus was on whether the airline was a provider of an interactive 

computer service. The court answered this question in the affirmative: 

We find that, under the plain language of the statute and its broad definition 

of an ICS [interactive computer service], 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. 

Lansing, 980 N.E.2d at 637. Cf. Kathleen R. v. City of Livermore, 104 Cal. Rptr. 2d 772, 

777 (Cal. Ct. App. 2001) (holding that public library was immune from suit under 

Section 230 because it provided an interactive computer service by enabling multiple

users to access the internet through its public computers). 

Here, the designated evidence clearly establishes that both 500 Festival and FedEx 

provide or enable computer access for multiple users on their respective computer 

networks to access the Internet by means of the servers on each network. We conclude 

that this is all that is required under Section 230(c)(1) to be considered a provider of an 

interactive computer service. 

Of course, simply because the defendants here have established that they are 

providers of an interactive computer service does not mean that they are automatically 

immune from suits. Section 230 of the CDA does not provide blanket immunity for 

providers of an interactive computer service. Instead, it protects such providers only 
19

from claims which seek to hold the provider as a “publisher.” Delfino, 52 Cal.Rptr.3d at 

388; see also Craigslist, Inc., 519 F.3d at 669 (explaining that Section 230(c) “cannot be 

understood as a general prohibition of civil liability for web-site operators and other 

online content hosts.”). Instead, for a defendant to claim the protection afforded by 

Section 230 of the CDA, it must establish three elements: (1) that the defendant is a 

provider or user of an interactive computer service; (2) that the cause of action treats the 

defendant as a publisher or speaker of information; and (3) that the information at issue is 

provided by another information content provider. Delfino, 52 Cal.Rptr.3d at 388 (citing 

Gentry v. eBay, Inc., 121 Cal. Rptr. 2d 703, 714 (Cal. Ct. App. 2002)). 

We have already concluded that both 500 Festival and FedEx are providers of an 

interactive computer service. And it is clear that the information at issue—the comments 

posted to the IBJ website—was provided by another “information content provider,”

which is defined as “any person or entity that is responsible, in whole or in part, for the 

creation or development of information provided through the Internet[.]” 47 U.S.C. §

230(f)(3). FedEx’s unknown user and 500 Festival’s known employee, Wilson, easily 

fall within this definition. 

The final question then is whether the Millers’ cause of action treats the 

defendants as publishers of the information. The Millers’ complaint clearly seeks to hold 

500 Festival and FedEx liable for what they published. See Appellant’s App. p. 87 (“Mr. 

Wilson, 500 Festival, Ms. Hanlon, Mr. Leagre, Ms. Leagre, FedEx, Does #1-3, Mr. Burk, 

Ms. Steege, Mr. Starr and Ms. Starr, individually and/or in a concerted action among 

some or all of the Defendants, published unfounded statements regarding misuse of funds 
20

and other criminal and/or lewd acts on the IBJ website, the Indianapolis Star website and 

WRTV-6s website”); id. at 88 (same); id. at 89 (same). And despite their references to 

other doctrines, such as respondeat superior, the Millers’ actual complaint seeks to hold 

500 Festival and FedEx liable as publishers of the statements. Thus, their claims are 

barred by Section 230(c) of the CDA. See Delfino, 52 Cal.Rptr.3d at 389; Lansing, 980 

N.E.2d at 637 (both holding that employers were protected by Section 230(c)(1) from 

suits seeking to hold them liable for the actions of their employees while using the 

employers’ computer networks to access the internet). Accordingly, the trial court 

properly granted summary judgment in favor of 500 Festival and FedEx. 

Conclusion

Although there may have remained a genuine issue of material fact concerning 

spoliation of evidence under state law, the trial court properly granted summary judgment 

in favor of 500 Festival and FedEx, finding each to be sued in their capacity as a 

publisher of the information at issue and concluding that, as such, these defendants were 

immune from the Millers’ claims under Section 230(c) of the federal Communications 

Decency Act because these defendants are providers of an interactive computer service. 

Affirmed. 

BAILEY, J., and BRADFORD, J., concur.