Designer Skin LLC v. S & L Vitamins, Inc., et al.
Michelangelo Delfino v. Agilent Technologies, Inc.
52 Cal.Rptr. 3d 376 (Cal. Crt. App., December 14, 2006)
Communications Decency Act Immunizes Employer From Liability For Employee's Threatening Emails
A California intermediate appellate court holds that the Communications Decency Act ("CDA"), 47 U.S.C. Section 230(c), immunizes an employer from claims arising out of the transmission by a then employee of threatening emails to, and posts about, plaintiffs from his office computer. As a result, the Court of Appeals affirmed the dismissal of intentional infliction of emotional distress claims advanced by plaintiffs against Agilent Technologies. Plaintiffs had sought to hold Agilent Technologies responsible for its employee's threatening conduct on theories of respondeat superior, negligent supervision/retention, and ratification.
The Court further held defendant entitled to summary judgment dismissing such claims on the facts before it. The respondeat superior claim failed because the evidence established that the employee was acting outside the scope of his employment when he transmitted the threatening emails in question. The negligent supervision/retention claim similarly failed because there was no evidence that Agilent Technologies was aware of its employee's activities when he was transmitting the emails at issue from his office computer. Agilent only learned of this misconduct after the fact, at which time it terminated the employee. Finally, there was no evidence that the defendant employer ratified its employee's misconduct.
Moore Transmits Threatening Emails From His Office Computer
Cameron Moore ("Moore") was an employee of Agilent Technologies. Under various aliases, including "crack_smoking_jesus" and "dr_dweezil", Moore sent threatening emails to plaintiffs Michelangelo Delfino ("Delfino") and Mary Day which threatened plaintiffs with physical harm. Plaintiffs were former employees of Varian Medical Systems ("Varian") who had been involved in litigation with that concern in which they were accused of defaming Varian. Plaintiffs had posted over 28,000 messages about Varian and Moore on the Internet, many of which were inflammatory. A jury found plaintiffs guilty of defamation. The jury's verdict was set aside, however, on procedural grounds. Moore claimed plaintiffs' conduct provoked his own misconduct.
Moore used his office computer to send the offensive emails and make the internet posts at issue. However, the evidence submitted to the court demonstrated that Agilent Technologies was unaware that Moore was using his office computer for that purpose while he was engaging in such activities. Agilent first learned that Moore was involved in improper conduct in July 2002, when it received an inquiry from the FBI concerning the identity of certain anonymous aliases used to post information online. Agilent cooperated with this inquiry, and advised that the aliases were traceable to an Agilent computer assigned to Moore.
At this time, Agilent was advised by the FBI that plaintiffs "had received some potentially threatening emails that appeared to come from Moore." The FBI further advised that they were not then planning on arresting Moore, "didn't consider him to be dangerous" and sought only to have this activity cease.
On August 12, 2002, Agilent interviewed Moore, who admitted sending offensive emails to the plaintiffs, but denied sending them from Agilent's computers. Moore was given a warning not to misuse Agilent's computer system. He promised he would not engage in such misconduct in the future.
The FBI subsequently arrested Moore for his transmission of threatening emails and posts. In April, 2003, Agilent learned for the first time that Moore had admitted using Agilent's computer systems prior to August 2002 to send emails that "could be interpreted as threats." Moore was immediately placed on administrative leave. Agilent terminated his employment shortly thereafter.
Moore subsequently plead guilty to one count of violating 18 U.S.C. Section 1512(d)(4), which makes it a crime to intentionally harass another to dissuade them from assisting in a criminal prosecution.
Communications Decency Act Immunizes Employer From Liability For Email Sent By Employee From Office Computer
Plaintiffs commenced this suit against Moore and Agilent Technologies, asserting claims of intentional and negligent infliction of emotional distress arising out of the transmission of the threatening emails and posts at issue. Plaintiffs sought to hold Agilent liable for the acts of its then employee Moore on theories of respondeat superior, negligent supervision/retention and ratification.
Agilent Technologies moved for summary judgment on the ground that the Communications Decency Act ("CDA"), 47 U.S.C. Section 230, immunized it from liability for these state law claims. The trial court agreed, and dismissed the complaint. On this appeal, the California Court of Appeals affirmed the dismissal of plaintiffs' claims.
Section 230(c)(1) of the CDA states that "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." The statute goes on to afford immunity from various state law claims in Section 230(e)(3), which provides that "no cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section."
To be entitled to immunity under Section 230, a defendant must establish that "(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 the information and (3) the information at issue is provided by another information content provider."
The Court held that Agilent satisfied each of these three prerequisites. As an employer that made the Internet available to thousands of employees via its company computer system, "Agilent was a provider of interactive computer services."
The Court further held that "plaintiffs, in alleging that Moore's employer was liable for his cyberthreats, sought to treat Agilent 'as a publisher or speaker' of those messages" within the meaning of the CDA, and thereby satisfied the second element necessary to obtain immunity under the CDA.
Finally, the information at issue was plainly provided by another content provider, namely Moore. As such, the Court of Appeals affirmed the trial court's dismissal of the action, holding that "Agilent was entitled to CDA immunity."
Respondeat Superior Claim Fails Because Employee Acted Outside The Scope Of His Employment
The Court of Appeals also held defendant entitled to summary judgment dismissing plaintiffs' claims because they could not be sustained in the face of the evidence before the Court.
Plaintiffs' attempt to hold Agilent responsible for Moore's misconduct on a theory of respondeat superior failed because Moore was acting outside the scope of his employment when he made the threatening communications at issue.
"An employer will not be held vicariously liable for an employee's malicious or tortuous conduct if the employee substantially deviates from the employment duties for personal purposes. Thus, if the employee 'inflicts an injury out of personal malice, not engendered by employment or acts out of personal malice unconnected with the employment, or if the misconduct is not an outgrowth of the employment, the employee is not acting within the scope of employment."
The Court held that Moore here was, as a matter of law, acting substantially outside the scope of his employment when he made the threats at issue. This conclusion was not altered by the fact that such threats were made from an office computer. Said the court:
Negligent Supervision Claim Fails Because Employer Fired Moore Promptly After Discovering His Misuse Of His Office Computer
The Court held that defendant was not guilty of negligent supervision/retention, because it only learned that Moore had used his office computer to transmit the threatening emails at issue after the fact, at which time it promptly terminated Moore.
According to the Court "an employer may be liable to a third person for the employer's negligence in hiring or retaining an employee who is incompetent or unfit. Negligence liability will be imposed upon the employer if it 'knew or should have known that hiring the employee created a particular risk or hazard and that particular harm materializes.'"
The Court held plaintiffs' negligent retention claim failed for three separate reasons. The Court found, on the record before it, that defendant owed no duty to plaintiffs, and hence could not be liable to plaintiffs regardless of the manner in which it supervised Moore. Said the Court:
The Court further found that, on the record before it, there was no evidence that Agilent Technologies was negligent in its retention or supervision of Moore, as it only learned that he had sent threatening email from his office computer after the fact. Finally, the Court held such claims failed because Agilent's purported negligence did not cause plaintiffs any harm, because, at best, it arose out of retaining Moore after he had already sent the emails in question, not before.
Finally, the Court dismissed plaintiffs' ratification claim, finding "there was no evidence that Agilent … treated Moore's malicious conduct as its own."