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The California Supreme Court has held that a person who merely receives a defamatory email and then forwards it to a third person, is immune from defamation liability under Section 230(c)(1) of the federal Communications Decency Act of 1996 (47 U.S.C. 230), so long as they have no “active involvement” in the creation of a defamatory message (Barrett v. Rosenthal, 40 Cal.4th 33, (2006))  Later, the federal Ninth Circuit Court of Appeals issued its “Roommates” decision stating that an Internet communicator’s CDA 230(c)(1) immunity can be lost to the extent the defendant’s own acts “materially contribute” to the illegality of the Internet message (Fair Housing Council v. Roommates.com, 521 F.3d 1157 (2008)).  Since CDA 230(c)(1) immunity for an Internet content provider in California state court is affected by both the state Supreme Court’s Barrett decision and the federal Ninth Circuit’s Roommates decision, we note that a California Court of Appeals recently ruled that an email message forwarder did not lose Section 230(c)(1) immunity when forwarding a defamatory message from a third party, with his own introduction that “everything will come out to the daylight, I invite you and our classmates to read the following comments” (Phan v. Pham, California Court of Appeals No. GO41666, February 25, 2010).  
 
Of perhaps greatest interest to Internet service providers, electronic media and publishing interests, the state Court of Appeals specifically analyzes, and discards as nonbinding dicta, the portion of the Ninth Circuit’s Roommates decision which suggests that the mere “affirmative decision to publish” i.e. resend another party’s defamatory message amounts to a “material contribution” by which 230(c)(1) immunity is lost.  The Court of Appeals instead finds that under the California Supreme Court’s Barrett decision, the mere “affirmative decision to publish” or forward defamatory or unlawful content created by another party, cannot serve as a basis for loss of CDA 230(c)(1) immunity.

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