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Phan v. Pham, 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791 (3rd. App. Dist. 2010)

Phan v. Pham, 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791 (3rd. App. Dist. 2010)

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Published by David S. Gingras
Phan v. Pham, 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791 (3rd. App. Dist. 2010)
Phan v. Pham, 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791 (3rd. App. Dist. 2010)

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Page 1182 Cal.App.4th 323, 105 Cal.Rptr.3d 791, 38 Media L. Rep. 1336, 10 Cal. Daily Op. Serv. 2451, 2010 DailyJournal D.A.R. 2956
(Cite as: 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791)
Court of Appeal, Fourth District, Division 3,California.HUNG TAN PHAN, Plaintiff and Appellant,v.LANG VAN PHAM, Defendant and Respondent.
No. G041666.
Feb. 25, 2010.
Background:
War veteran brought defamation actionagainst individual who forwarded allegedlydefamatory e-mail which accused veteran of having been disciplined for abusive behavior. The Superior Court, Orange County, No. 30-2007-00100039,Kazuharu Makino, J., dismissed the action on a nonsuit motion, and veteran appealed.
The Court of Appeal,Sills
 
, P.J., held thatforwarder, who placed introductory paragraph onforwarded e-mails, did not make a materialcontribution to the alleged defamation. Affirmed.West Headnotes
[1]Libel and Slander 237 28
237Libel and Slander  237I Words and Acts Actionable, and Liability Therefor  237k26Repetition 237k28 k. By others in general.Most Cited  Cases E-mail forwarder who placed introductory paragraphon allegedly defamatory e-mail did not make amaterial contribution to the alleged defamation asrequired to remove forwarder from immunity as a“distributor” under the Communications Decency Actof 1996; forwarded merely stated that “everythingwill come out to the daylight” and invited people toread the comments of the writer of the allegeddefamatory material. Communications Decency Actof 1996, § 509(c)(1),47 U.S.C.A. § 230(c)(1).
 
[2]Appeal and Error 30 170(1)
30Appeal and Error  30V Presentation and Reservation in Lower Court of Grounds of Review 30V(A)Issues and Questions in Lower Court 30k170  Nature or Subject-Matter of Issues or Questions 30k170(1) k. In general.Most Cited  Cases War veteran's failure on appeal to offer a satisfactoryexplanation for failing to discover the fact of alleged“superior-subordinate” relationship between sender and receiver of alleged defamatory e-mail prior totrial resulted in waiver of the issue, and thus Court of Appeal would decline to consider whether aconspiracy between any “user” and “content provider” was entitled to statutory immunity afforded by the Communications Decency Act of 1996 to a“distributor” of e-mail. Communications DecencyAct of 1996, § 509, 47 U.S.C.A. § 230.
**792
Hung Tan Phan, in pro. per., for Plaintiff andAppellant.Mark Rosen andDina L. Nguyen, Westminster, for Defendant and Respondent.
*324
OPINIONSILLS, P.J.What happens when you receive a defamatory e-mailover the internet and simply hit the forward icon onyour computer, sending it on someone else? Under 
 you
cannot be held liable for the defamation. The person who
originated 
the e-mail can be, of course. Or, to spinthe scenario around: If you are defamed in an e-mailand the person who receives the e-mail then simplyforwards it on to a friend, your recourse is against the© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
Page 2182 Cal.App.4th 323, 105 Cal.Rptr.3d 791, 38 Media L. Rep. 1336, 10 Cal. Daily Op. Serv. 2451, 2010 DailyJournal D.A.R. 2956
(Cite as: 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791)
originator of the first e-mail, not the person who hitthe forward icon.That much is clear.
was a case where thedefendant received an e-mail containing an articlefrom a co-defendant (in fact, the article was by theco-defendant). The article accused a doctor of stalking. The defendant posted a copy of thedefamatory article to a newsgroup website. When thedoctor sued the defendant for defamation, our statehigh court, interpreting federal
*325
law,
reverseda Court of Appeal decision that had allowed thedoctor to sue the defendant for the stalkingaccusation. The appellate court had reasoned that thefederal law did not immunize the defendant as a “‘distributor,’ ” but the California Supreme Court heldthe defendant
was
immunized, even as a“distributor.”(
40 Cal.4th at pp. 40-41, 51 Cal.Rptr.3d 55, 146 P.3d 510.)FN1. The Communications Decency Act of 1996, found at47 U.S.C. 230. The immunity portion is found in subdivision (c)(1). Allfurther undesignated statutory references tosection 230” or to “(c)(1)” will be to title47 of the United States Code or tosection 230 of title 47
 
, respectively. As the
court explained, subdivision (c)(1) shieldsall content providers “from liability for ‘publishing’ information received from third parties.” (
40 Cal.4th at p. 53, 51 Cal.Rptr.3d 55, 146 P.3d 510.)The case before us now presents an issueadumbrated, but not decided, in footnote 19 of the
decision: What happens when you receive adefamatory e-mail and you forward it along, but, in amessage preceding the actual forwarded document,introduce it with some language of your own? (See
courtnoted:
 At some point, active involvement 
in thecreation of a defamatory Internet posting wouldexpose a defendant to liability as an original source.”(
 italics added.) However, because, in
the defendant “made no changes in the article sherepublished on the newsgroups,” the court concludedthat it did not need to consider “when that line iscrossed.” (
)[1]Was that line crossed in the case before us? Here,the president of the group of veterans from the Navyand Merchant Marine of the Republic of Vietnamsent an e-mail to his fellow veterans,
 accusing plaintiff Hung Tan Phan of having been disciplined by the Navy of the Republic
**793
of Vietnam for abusive behavior during the last days of the VietnamWar.
Defendant Lang Van Pham received the e-mail, and sent it on to at least one of his fellowveterans. But he included this introductory paragraphof his own:FN2. The e-mail was written in theVietnamese language. Plaintiff Hung TanPhan has provided his own Englishtranslation and there is no issue in this caseregarding the accuracy of the translation.FN3. Beyond that, there is no need in thiscase to recount the nature of the comments,or their context. However, a more complete background of Hung Tan Phan's difficultieswith his fellow veterans leading to the present case against Lang Van Pham andseveral others may be found in
(Jan. 13, 2010, No. G041729) [nonpub. opn.] 2010 WL 109723.“Dear Kmap“Everything will come out to the daylight, I inviteyou and our classmates to read the followingcomments of Senior Duc (Duc Xuan Nguyen)President
*326
of the Federation of Associations of the Republic of Vietnam Navy and MerchantMarine.” 
The issue before the court is whether thisintroduction is itself enough to remove the immunitythat defendant Pham would clearly enjoy under section 230(c)(1) as explained in 
FN4. Phan's English translation puteverything after “Senior Duc” in all caps.However, the original Vietnamese did nothave anything in all caps, and we havereduced the all caps to normal capitalization© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.
 
Page 3182 Cal.App.4th 323, 105 Cal.Rptr.3d 791, 38 Media L. Rep. 1336, 10 Cal. Daily Op. Serv. 2451, 2010 DailyJournal D.A.R. 2956
(Cite as: 182 Cal.App.4th 323, 105 Cal.Rptr.3d 791)
for ease of reading.We conclude the line noted by 
 was notcrossed under the facts of this case given the“material contribution” test articulated by the NinthCircuit explicating section 230(c)(1)in the case of 
(
). The
 case arose out of a commercialwebsite which, held the en banc majority, did onlinewhat a real estate broker could not lawfully do in person: ask about the race of a prospective buyer or renter of property. (See
at p. 1164.) As against a lawsuit from a publicinterest group based on the site's affirmative inquiriesfor racial preferences in housing matchups, thewebsite had assertedsection 230(c)(1)immunity. In along opinion, the federal appellate court held that theimmunity did not attach. In doing so, the courtemployed a number of formulations that essentiallystand for the rule that a defendant's own acts must
materially contribute
to the illegality of the internetmessage for immunity to be lost. We quote theseformulations in the margin.
FN5. Here is a compendium of relevant passages:“Roommate's own acts-posting thequestionnaire and requiring answers to it-are
entirely its doing 
and thus section 230  of the CDA does not apply to them.”(
521 F.3d at p. 1165, italics added.)“We believe that both the immunity for  passive conduits and the exception for co-developers must be given their proper scope and, to that end, we interpret theterm ‘developmentas referring notmerely to augmenting the contentgenerally, but to materially contributing toits alleged unlawfulness. In other words, awebsite helps to develop unlawfulcontent, and thus falls within theexception tosection 230,
if it contributesmaterially
to the alleged illegality of theconduct.” (
521 F.3d at pp. 1167-1168,italics added.)“A dating website that requires users toenter their sex, race, religion and maritalstatus through drop-down menus, and that provides means for users to search alongthe same lines, retains its CDA immunityinsofar as it
does not contribute
to anyalleged illegality; this immunity isretained even if the website is sued for libel based on these characteristics because the website
would not havecontributed materially
to any allegeddefamation. Similarly, a housing websitethat allows users to specify whether theywill or will not receive emails by meansof user-defined criteria might help someusers exclude email from other users of a particular race or sex. However, thatwebsite would be immune, so long as itdoes not require the use of discriminatorycriteria. A website operator who editsuser-created content-such as by correctingspelling, removing obscenity or trimmingfor length-retains his immunity for anyillegality in the user-created content, provided that the edits are unrelated to theillegality. However, a website operator who edits in a manner that
contributes
tothe alleged illegality-such as by removingthe word ‘notfrom a user's messagereading ‘[Name] did not steal the artwork’in order to
transform
an innocent messageinto a libelous one-is
directly involved inthe alleged illegality
and thus notimmune.” (
521 F.3d at p. 1169, italics omitted and added.)
**794
 
*327
One small caveat should be noted inregard to the 
 opinion, at least for our  purposes as a California intermediate appellate court.There is a passage in 
that suggests thatone alternate way of phrasing the materialcontribution test is to ask the question of whether thedefendant
enhanced 
the illegality of the message (so© 2010 Thomson Reuters. No Claim to Orig. US Gov. Works.

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