A case arising from a Texas state court may stretch the federal Communications Decency Act to its limit. That statute has provided substantial protection for Web site operators in their role as curators and content platforms, but the Texas decision may apply that protection to those o perators in their role as employers .

The case arose when a woman named Chris Davis alleged that a man named Chris Fournet lodged "an obscene cyber-strike campaign" against her by posting advertisements to Craig"s List  and posing '"as [Davis] as if she were soliciting for sexual encounters with strangers[.]'" According to Davis, Fournet used technology owned by his employer, Motiva to pull off his dirty deeds. Davis also alleged that Fournet had previously used Motiva"s technology for several years to access Craig"s List for "soliciting sexual encounters " and "other pornographic , swinger life, or adult 'friend finder" websites " during work hours  and while  under  Motiva"s  supervision. She  claimed that  "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.'"

Davis made the allegations about Motiva for a reason. She also named Motiva a defendant in the case, based on its negligent supervision of Fournet Motiva filed a motion to dismiss, arguing among other things that the federal Communications Decency Act barred the claim.

The CDA says a provider of an interactive computer service cannot be dee med the publisher of content provided by third parties. And if the Web host isn't considered the publisher of the content , it can't be liable for the content So the law effectively immunizes Web site hosts for posts made by third parties. Motiva essentially argued that the basis for Davis's suit was the content of the material Fournet posted online. And so in Motiva's view, the CDA applied and shielded it from liability.

Davis argued. though , that Motiva' s liability arose not fro m its role as a Web site host. but rather fro m its role as an employer. That is, the fact that Fournet's conduct involved posting online conduct wasn't the key issue. The point is no matter what Fournet did, it happened because Motiva failed to properly supervise him. Imagine that Fournet physically assaulted Davis. and the assault had something to do with Motiva's inadequate supervision. The CDA would have no application there. In Davis 's view ,the online posting was like a physical assault

Davis cited several cases where Web hosts were not able to use the CDA as a defense to failure to warn/supervise claims. But the Texas appellate court didn't follow that precedent And it's not clear why, other  than the court's finding that Davis failed to present adequate evidence to de monstrate Motiva's failure. That 's a valid reason to dis miss, perhaps, but it's not clear  how  that  evidentiary failure justifies the court invoking the CDA.

This case presents a "hybrid" defendant - Motiva is an interactive co mputer service provider, but in this case it's also an employer . The question ultimately would seem to hinge on which hat the defendant is wearing. It will be interesting to see if Ms. Davis appeals to the Texas Supreme Court And which hat that court puts on Motiva.