Texas Case Tests Communications Decency Act

The federal Communications Decency Act (CDA) was designed to safeguard “website operators” when curating content that might end up being illegal and/or unethical. If a website ends up promoting a link that leads to cyberstalking, for example, who’s at fault? The website manager who thought they were linking to something safe, the web host who’s actually “hosting” that content or somebody else? A woman in Texas, Chris Davis, has filed a lawsuit against another Chris (the defendant is a male)—Chris Fournet—accusing him of an “obscene cyber strike campaigning.” He allegedly put up Craigslist ads pretending to be Davis “as if she were soliciting for sexual encounters with strangers.”

Davis says that Fournet utilized tech that was provided by his employer. Motiva, Fournet’s employer, was used to achieve this sex-based campaign for “several years” according to Davis. She says he also used Motiva’s tech for “other pornographic, swinger life, or adult friend finder websites” all while he was at work and was supposed to be supervised by Motiva. Davis says, “Motiva employees, including those in management, would by their proximity and interaction with Fournet have known or suspected his consistent interactions with pornographic and adult websites during working hours using Motiva IT.” In other words, Davis is kind of blaming Motiva for “letting” Fournet peruse sexually explicit websites and putting her safety at risk.

Who’s to Blame?

In addition to accusing Fournet of illegal, immoral activities, Davis has also filed a lawsuit against Motiva. She says their supervision of Fournet was “negligent,” and already Motiva has asked for a dismissal. This dismissal request is steeped in numerous excuses, one of which being that the CDA should make the claim moot. As for the CDA, federal spokespersons have said that just because someone provides an “interactive computer service,” that doesn’t mean they’re also the publisher of any content that might appear on third party sites. Plus, web hosts are also not content publishers, so hosts can’t be held liable. This detail on web hosting was put in place within the CDA to keep them immune from third party site content which may be illegal in some instances.

Ultimately, Motiva says that Davis’ lawsuit is based on content that Fournet himself posted. This makes them, the employer, protected from liability. However, Davis says that Motiva should be held liable not as a host but as a negligent employer. She says that her lawsuit against the employer is not about Fournet posting content. It’s about Motiva’s lack of supervision—and what would happen if his online activities while at work resulted in physical harm to her? She likens his online posting, during work hours, as being “like” a physical assault. To further her point, she’s pointed out numerous cases where web hosts weren’t able to use the CDA as a shield in lawsuits.

Everything, Including Web Host Complaints, is Bigger in Texas

Thus far, Texas’ appellate court hasn’t used previous such cases as a precedent. The court also says that Davis didn’t provide enough evidence to showcase Motiva’s alleged negligence. That might be a good grounds for dismissal, but it leaves future such cases up in the air. Using a “hybrid defendant” like Motiva is likely to be more common in the future thanks to the digital era and people’s general dependency on technology. A defendant might wear numerous hats from employer to web host. It’s also expected that Davis might appeal to the state Supreme Court, which might see Motiva’s role differently.

Web hosts and employers alike are often scapegoats for cases like this, even when they may not be aware at all of how people are using their technology. Do you think Motiva should be partly liable for Davis’ situation?



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Drew Hendricks

Writer at Hostt
Drew is a content manager at hostt. He has been a blogger for years and currently writes for Forbes, Inc, Entrepreneur and several other sites.

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