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Phan v. Pham


February 25, 2010


Appeal from a judgment of the Superior Court of Orange County, Kazuharu Makino, Judge. Affirmed. (Super. Ct. No. 30-2007-00100039).

The opinion of the court was delivered by: Sills, P. J.



What happens when you receive a defamatory e-mail over the internet and simply hit the forward icon on your computer, sending it on someone else? Under Barrett v. Rosenthal (2006) 40 Cal.4th 33 (Barrett), you cannot be held liable for the defamation. The person who originated the e-mail can be, of course. Or, to spin the scenario around: If you are defamed in an e-mail and the person who receives the e-mail then simply forwards it on to a friend, your recourse is against the originator of the first e-mail, not the person who hit the forward icon.

That much is clear. Barrett was a case where the defendant received an e-mail containing an article from a co-defendant (in fact, the article was by the co-defendant). The article accused a doctor of stalking. The defendant posted a copy of the defamatory article to a newsgroup website. When the doctor sued the defendant for defamation, our state high court, interpreting federal law,*fn1 reversed a Court of Appeal decision that had allowed the doctor to sue the defendant for the stalking accusation. The appellate court had reasoned that the federal law did not immunize the defendant as a "`distributor,'" but the California Supreme Court held the defendant was immunized, even as a "distributor." (Barrett, supra, 40 Cal.4th at pp. 40-41.)

The case before us now presents an issue adumbrated, but not decided, in footnote 19 of the Barrett decision: What happens when you receive a defamatory e-mail and you forward it along, but, in a message preceding the actual forwarded document, introduce it with some language of your own? (See Barrett, supra, 40 Cal.4th at p. 60, fn. 19.) As the Barrett court noted: "At some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source." (Ibid., italics added.) However, because, in Barrett, the defendant "made no changes in the article she republished on the newsgroups," the court concluded that it did not need to consider "when that line is crossed." (Ibid.)

Was that line crossed in the case before us? Here, the president of the group of veterans from the Navy and Merchant Marine of the Republic of Vietnam sent an e-mail to his fellow veterans,*fn2 accusing plaintiff Hung Tan Phan of having been disciplined by the Navy of the Republic of Vietnam for abusive behavior during the last days of the Vietnam War.*fn3 Defendant Lang Van Pham received the e-mail, and sent it on to at least one of his fellow veterans. But he included this introductory paragraph of his own:

"Dear Kmap

"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."*fn4 The issue before the court is whether this introduction is itself enough to remove the immunity that defendant Pham would clearly enjoy under section 230(c)(1) as explained in Barrett.

We conclude the line noted by Barrett was not crossed under the facts of this case given the "material contribution" test articulated by the Ninth Circuit explicating section 230(c)(1) in the case of Fair Housing Council of San Fernando Valley v. Roommates.Com, LLC (2008) 521 F.3d 1157 (Roommates).

The Roommates case arose out of a commercial website which, held the en banc majority, did online what a real estate broker could not lawfully do in person: ask about the race of a prospective buyer or renter of property. (See Roommates, supra, 521 F.3d at p. 1164.) As against a lawsuit from a public interest group based on the site's affirmative inquiries for racial preferences in housing matchups, the website had asserted section 230(c)(1) immunity. In a long opinion, the federal appellate court held that the immunity did not attach. In doing so, the court employed a number of formulations that essentially stand for the rule that a defendant's own acts must materially contribute to the illegality of the internet message for immunity to be lost. We quote these formulations in the margin.*fn5

One small caveat should be noted in regard to the Roommates opinion, at least for our purposes as a California intermediate appellate court. There is a passage in Roommates that suggests that one alternate way of phrasing the material contribution test is to ask the question of whether the defendant enhanced the illegality of the message (so far so good), but then goes on to further suggest that the mere "affirmative decision to publish" contributes materially to the illegality of an allegedly unlawful internet dissemination.*fn6 Applied to the context of the passing on of an allegedly defamatory e- mail, the passage might be read to suggest that the "affirmative decision" by the recipient to pass on the e-mail is itself an enhancement (i.e., material contribution to the illegality of the message), and thus independently actionable despite section 230(c)(1).

The passage from Roommates is dicta because the website operator there, as the opinion demonstrated at length, did much more than merely make an "affirmative decision to publish." It created a website "designed to solicit and enforce housing preferences that are alleged to be illegal." (Roommates, supra, 521 F.3d at p. 1170, italics added.) That is, there a lot of work went into those questions about racial preferences; this was much more than the equivalent of hitting the forward icon.

However, even if the passage were not mere dicta, we would be required to part company with it under the doctrine of stare decisis. The California Supreme Court's decision in Barrett also involved an "affirmative decision to publish" by a website operator, who was under no compunction in that case to post the article accusing the plaintiff doctor of stalking. And our high court squarely held that that decision was immune under section 230(c)(1). For our purposes, the direct holding of the California Supreme Court trumps Ninth Circuit dicta. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) We need only add that, as the Ninth Circuit itself said in another case, section 230(c)(1) immunity was intended to prevent liability that otherwise would obtain under traditional common law as regards the publication of someone else's material (see Batzel v. Smith, supra, 333 F.3d at p. 1026 [section 230(c)(1) immunity was intended to "override[] the traditional treatment of publishers, distributors, and speakers under statutory and common law"]), a thought consistent with the Supreme Court's decision in Barrett.

Turning directly to the case at hand and using the material contribution test from Roommates, it is evident that defendant Pham made no material contribution to the alleged defamation in the e-mail he received from Nguyen Xuan Duc. His original language, quoted in full above, merely said, in essence: Look at this and "Everything will come out to the daylight." All he said was: The truth will come out in the end. What will be will be. Whatever.

That is, the only possible defamatory content is to be found in the e-mail was the original content received by defendant Pham from Nguyen Xuan Duc. Nothing "created" by defendant Pham was itself defamatory.

Following Barrett, as did the trial court, we conclude that the judgment dismissing the case, the result of a non-suit motion when the case came to trial,*fn7 must be affirmed.

Respondent Pham shall recover his costs on appeal.


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