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February 26, 2010
Forwarding Defamatory Email with Introductory Comments Protected by 47 USC 230--Phan v. Pham
By Eric Goldman
Phan v. Pham, 2010 WL 658244 (Cal. App. Ct. Feb. 25, 2010)
This is the first 230 case I'm blogging about in 2010 (see my 2009 recap), and what a nice ruling to start the year. The facts are crisp and clean: An email author wrote an allegedly defamatory email about plaintiff Phan and sent it to a group of recipients, including defendant Pham. Pham then forwarded the email with the following additional comments to at least one recipient:
“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.”
[Note: the relevant emails were originally in Vietnamese, but no one contested the English translations]
As we know, 47 USC 230 divides the universe of content into two buckets: first party content and third party content. In some cases, like Roommates.com or Mazur, the division between the two buckets is very murky. But in this fact pattern, Pham's email can be cleanly zoned into first party and third party content, which makes 230's application pretty simple. Per the 2006 California Supreme Court ruling in Barrett v. Rosenthal, California law is unambiguous that Pham isn't liable for the contents of the forwarded email.
But what about the fact that Pham chose to forward the email? In the post-Roommates.com era, I routinely encounter misguided arguments that an online actor's affirmative decision to republish third party content strips away 47 USC 230 protection. Roommates.com even has some ambiguous language suggesting this outcome. (The court is so baffled by the Roommates.com opinion that it simply quotes multiple paragraphs in a footnote, as if we will be able to divine some coherence from the language that escaped this judicial panel).
However, that's never been the law. See, e.g., Barrett v. Rosenthal, Batzel v. Smith, D'Alonzo v. Truscello and the many Ripoff Report cases; but see the goofy Woodhull case). As this case illustrates, nothing on this point has changed in the post-Roommates.com era. Instead, the court believes (as I do) that the Roommates.com opinion turned on the fact that Roommates.com "created a website 'designed to solicit and enforce housing preferences that are alleged to be illegal.'” Without the mandatory illegality, 230(c)(1) protects an editorial decision to publish third party content just as much as it protects the decision not to. The court expressly rejects any implication that Roommates.com trumped Barrett v. Rosenthal or California law on that point.
In a footnote, the court says it is expressly not addressing the Moreno concurrence in Barrett v. Rosenthal that an alleged conspiracy between content originator and content republisher would trump 230.
For those of you keeping score, this is a rare case where Roommates.com was distinguished rather than cited in support of the defense. But in the end, the defense still easily won the 47 USC 230 ruling.
With 230 resolved in Pham's favor, the only remaining question is Pham's liability for his first party content--the email introduction he wrote. There's no question that Pham can be liable for his own words (see, e.g., the uncited Tefft case), but in a brief and breezy opinion, the court says that Pham didn't say anything impermissible. The only "substance" to Pham's introduction is a vague assertion to the effect that the truth will come out. That's not defamatory, even if it implicitly suggests that the forwarded email may help enlighten the truth.
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