Double Check Your Work: Online Content Creators Who Use Defamatory Material From a Third Party May Not Be Protected By the Communications Decency Act of 1996

In Rose Bui v. Ngo Ky (No. G062338, filed May 8, 2024 and certified for partial publication), the California Court of Appeal, Fourth District reversed a trial court’s grant of a special motion to strike Plaintiff’s complaint pursuant to Code of Civil Procedure Section 425.16, the anti-SLAPP statute.

In 2022, Ted Bui ran for state assembly. During his campaign, defendants Nam Quan and Ngo Ky (collectively, “Defendants”) posted a video on YouTube stating that the family of Mr. Bui’s wife, plaintiff Rose Bui (“Plaintiff”) were members of the Vietnamese Communist Party. Defendants’ YouTube video claimed Plaintiff’s father was the Commander of the Communist Party regime. The YouTube video further claimed that Plaintiff and her husband attended a 2022 Lunar New Year parade dressed in red and yellow just like the communist regime’s flag, and danced to communist music.

In response, Plaintiff filed a defamation suit against Defendants. Defendants then filed an anti-SLAPP motion focused on two arguments: 1) Plaintiff is a limited purpose public figure who needs to demonstrate actual malice in conjunction with her defamation claim; and 2) Defendants are immune pursuant to the Communications Decency Act of 1996. The trial court granted Defendants’ anti-SLAPP motion and the Court of Appeals reversed.

In the motion, Defendants asserted the alleged defamatory statements in their video came from a Facebook post consisting of a photo of a man in a Vietnam communist army official colonel uniform that the post claimed to be Plaintiff’s father, and a video of Plaintiff and her husband wearing red clothing and yellow head dresses dancing to “Vietnam communist music.”

In her Complaint and in support of the opposition to the anti-SLAPP motion to strike, Plaintiff asserted that the photo of the man in the colonel uniform was not her father, the dress in red was symbolic of the Lunar New Year, and the original video showing she and her husband dancing had been to Vietnamese pop music (which the opinion reveals the Facebook post creator admitted he dubbed with the communist music).

As to the claim Plaintiff was a “limited purpose public figure,” Defendants argued that because Plaintiff’s husband was a political candidate he brought his family into the public eye. The Court of Appeals disagreed and stated that to hold a political candidate’s family members to be limited purpose public figures per se “would effectively turn family members of a political candidate, including children, into public figures through no purposeful action of their own.”

Second, the Court of Appeals held that the Communications Decency Act of 1996, codified in 47 U.S.C. section 230 (“Section 230”), was not applicable to the facts of this case. Section 230 provides that “[n]o 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.” The Court of Appeals noted that while Section 230 confers broad immunity against defamation liability for those who use the Internet to publish information that originated from another source, the immunity extends only to someone who acts as a conduit of defamatory content created or developed by a third party, not someone who creates or develops the defamatory content themselves.

Defendants claimed they “simply republished defamatory content created by a third party,” i.e., the Facebook post. The Court disagreed, stating that Plaintiff’s defamation claim was not grounded in the depictions provided from the Facebook post, but was “aimed at extrapolations about [Plaintiff] made by [Defendants] after viewing the photos and video.” Thus, Defendants fell outside of the protections of Section 230, learning “the pitfalls of blind reliance on a social media post…”

The Court’s holding is a reminder to content creators to double check the information they find on the internet and discuss in their own content. Unless creators are strictly relaying alleged defamatory content as a mere conduit, they may be at risk of a defamation suit against them.

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May 14, 2024