Phan v. Pham, 2010 WL 658244 (Cal. App. Ct. Feb. 25, 2010).

Duc Xuan Nguyen, President of the Federation of Associations of the Republic of Vietnam Navy and Merchant Marine sent an e-mail to his fellow veterans accusing plaintiff Huang Tan Phan of having been disciplined by the Navy of the Republic of Vietnam for abusing behavior during the last days of the Vietnam War. Defendant Lang Van Pham received the e-mail and forwarded it with the following introduction: “Everything will come out to the daylight, I invite you and our classmates to read the following comments of Senior Duc (Duc Xuang Nguyen) . . .” The issue before the court was whether the additional comments by defendant were enough to subject him to liability for the defamatory contents of the e-mail he was forwarding.

The court in Barrett v. Rosenthal (2006) 40 Cal. 4th 33, held that simply forwarding a defamatory e-mail was not enough to hold a defendant liable for defamation. The defendant in Barrett, however made “no changes in the article she republished on the newsgroup,” but the court held that at some point “active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source.”

The “material contribution” test articulated by the Ninth Circuit in the case of Fair Housing Council of San Fernando Valley v. Roommates.com, LLC (2008) 521 F.3d 1157 states that a defendant’s own acts must materially contribute to the illegality of a message for immunity to be lost. Applying that test the court held that the defendant in this case made no material contribution to the alleged defamation in the e-mail he received. The defendant merely introduced the contents of an email with the only defamatory content found in the original message. Defendant was therefore immune from liability for defamation under Section 230 of the Communications Decency Act.