Email Liability: What Happens If You Forward A Message That Contains Defamatory Information

The court of appeal has offered simple, straightforward advice in an email defamation case.  In ruling on a claim that a person’s reputation was harmed when the defendant forwarded an email containing defamatory information, the court held there was no liability unless the defendant “materially contributed” to the content of the defamatory material.  To quote the court:  “What happens when you receive a defamatory e-mail over the internet and simply hit the forward icon on your computer, sending it on to someone else?  Under Barrett v. Rosenthal (2006) 40 Cal.4th 33, 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.”  The case in question is Phan v. Pham. It posed a slightly different factual question because the person who forwarded the allegedly defamatory e-mail didn’t just hit the forward icon;  he added some language of his own.  The issue for the court was whether the defendant crossed the line and incurred liability by adding his own thoughts to the injurious message.  As the Barrett court had noted, “At some point, active involvement in the creation of a defamatory Internet posting would expose a defendant to liability as an original source.”  Barrett, 40 Cal.4th at p. 60 & fn. 19.  The court held that there was no liability in the Phan case because the defendant “forwarder” did not add any significant content to the defamatory e-mail.  The test is whether the defendant makes a “material contribution” to the original e-mail.    Generally, the Communications Decency Act of 1996 (47 U.S.C. § 230) provides immunity which shields all content providers from liability for publishing information received from third parties.  A copy of the Phan decision is attached for your convenience.

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