Forwarder of defamatory email protected under Section 230

Hung Tan Phan v. Lang Van Pham, — Cal.Rptr.3d —, 2010 WL 658244 (Cal.App. 4 Dist. Feb. 25, 2010)

Defendant, a veteran of the Vietnamese military, forwarded an email to some other Vietmamese veterans which apparently defamed another veteran. He didn’t just forward the email, though. He added some commentary at the beginning, which said (translated from the original Vietnamese):

Everything will come out to the daylight, I invite you and our classmates to read the following comments of Senior Duc (Duc Xuan Nguyen) President of the Federation of Associations of the Republic of Vietnam Navy and Merchant Marine.

The person who was the subject of the defamatory email sued the forwarder. The trial court dismissed the case, holding that the defendant was immune from liability under the Communications Decency Act at 47 U.S.C. 230.

That section gives immunity from suit to users and providers of interactive computer services who are distributing information provided by a third party. More than three years ago, in Barrett v. Rosenthal, the California Supreme Court held that Section 230 immunity applies to one who further distributes the contents of a defamatory email message.

The plaintiff sought review with the California Court of Appeal. The court affirmed.

The court looked to the Roommates.com case, to which it attributed a test that requires a defendant’s own acts to materially contribute to the illegality of the internet message for Section 230 immunity to be lost.

In this case, the court held that the introductory remarks did not meet the material contribution test articulated in Roommates.com. The court found that “[a]ll [the defendant] said was: The truth will come out in the end. What will be will be. Whatever.”

Email ribbon photo courtesy Flickr user Mzelle Biscotte under this Creative Commons License