Employer Not Liable for Employee’s Threatening Emails Per 47 USC 230–Delfino v. Agilent

By Eric Goldman

Delfino v. Agilent Technologies, Inc., 2006 WL 3635399 (Cal. App. Ct. Dec. 14, 2006)

Prior to this case, my working theory was that 47 USC 230 would not insulate employers from liability for employee actions because companies can only act through their employees. Yet, this case holds exactly the opposite. As a result, this case may mark an important expansion of the 230 defense. At minimum, it signals that management-side employment lawyers may have a new defense tool at their disposal. At the same time, I don’t think this case will be followed in many future cases, so its ultimate impact may be less significant than it initially appears.

In this case, an Agilent employee used Agilent’s network to access the Internet and make cyberthreats that were unrelated to the employee’s job. The people who were targets of the threats sued the employee as well as Agilent as his employer. The court rejected the claims against Agilent both on 47 USC 230 grounds as well as standard doctrines limiting employers’ liability. The application of 230 in the employment context is, I believe, unprecedented, and the court acknowledged this. However, the voluminous and defense-favorable body of 47 USC 230 case law (including the recent Barrett v. Rosenthal Supreme Court opinion) appeared to encourage the judge to read the statute expansively.

Personally, I think this reading is unnecessarily broad. This case could have been easily resolved on the standard defense doctrines that excuse an employer from liability for an employee’s behavior unrelated to the employment, so there was no need to reach the 47 USC 230 defense.

Further, if employers can claim that 47 USC 230 applies to their employee’s conduct even if conducted within the scope of the agency, then 230 swallows up almost all of corporate tort law online, providing an airtight defense to every company for any online liability (because such tortious behavior is always carried out by some employee in the scope of the agency). This isn’t what 47 USC 230 does or says. Due to the agency between employer and employee, a corporation cannot claim that its employee’s content is the content of another information content provider, so the 47 USC 230 defense should fail for employees’ actions.

As a result, at most, I think future courts will follow this holding only to the extent that the corporation is merely acting as the Internet access provider for an employee’s conduct that is completely unrelated to the company’s interests. In other claims against the employer for employees’ actions, 47 USC 230 generally should not apply.

UPDATE: According to the local legal paper The Recorder, the plaintiffs plan to appeal this ruling. It wouldn’t surprise me if this ruling gets reversed on appeal.

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