Forwarding Defamatory Email | Communications Decency Act

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The Communications Decency Act Safe-Harbor Shielded a Party Who Forwarded a Defamatory E-Mail From Subsequent Lawsuit

January 18, 2011

On November 17, 2010, the U.S. District Court for the District of New Jersey ruled that an individual who forwarded an allegedly defamatory e-mail was a "user of an interactive computer service" and shielded from a related defamation lawsuit by the Communications Decency Act (Mitan v. A. Neuman & Associates LLC, D.N.J., No. 08-6154, 11/17/10).  The individual added commentary before forwarding the e-mail, but that commentary did not clearly refer to the plaintiff.  As a result, the plaintiff's libel claim arose solely from the original message, which said that the plaintiff engaged in criminal activity.

The Communications Decency Act ("CDA") shields an individual from any liability related to republication—via forwarding—of the original sender's e-mail. “[A]s the downstream Internet user who received an email containing defamatory text and ‘simply hit the forward icon on [his] computer,' [the individual's] acts are shielded by the CDA, and Plaintiff's libel claim against [the individual] is necessarily preempted under 47 U.S.C. §230(e)(3),” the court held.  The CDA states that “no provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” It defines information content providers as “any person or entity that is responsible, in whole or in part, for the creation or development of information provided through the Internet or any other interactive computer service[,]” §230(f)(3).

In this case, the individual who created and sent the original, allegedly defamatory text was the “information content provider,” the court found.  The claim, which arose from that message, sought to treat this individual as the speaker of that material, and was thus preempted by the CDA.  In fact, in Barrett v. Rosenthal, 146 P.3d 510 (Cal. 2006)(11 ECLR 1119, 11/22/06), it was held that CDA immunity extends to parties that republish defamatory statements made by others via e-mail or on websites.  Novins v. Cannon, No. 09-5354 (D.N.J. April 27, 2010)(15 ECLR 707, 5/5/10), also concluded that the CDA applied in a republication-related lawsuit. The court said that republishing an e-mail drafted by someone else is the functional equivalent of hosting a website where others can post comments, for the purposes of the CDA.

Relying on those cases, the court here concluded that the individual's e-mail forwarding was CDA-protected activity. The plaintiff attempted to avoid the CDA with an argument that the statute could not apply because the original source may have been a print newsletter. The court was not persuaded.  “[R]egardless of the original source of the [defamatory message], it is undisputed that [the individual] received the [defamatory message] via the Internet (email) and republished the same via the Internet (email)[,]” the court found.  As a result, the “information content provider,” for purposes of the CDA, was the party responsible for the online creation of the message.

Richard B. Newman, Internet Lawyer and Internet Law Specialist - Hinch Newman LLP