What is Publication?
A defamatory statement is considered “published” when it is communicated either intentionally, with actual malice or reckless disregard, or negligently, to someone other than the person being defamed. The statement must also be reasonably understood by the recipient to be false. Publication, therefore, has two key requirements:
Below, we dive into these two key elements in greater detail.
The Publication is Communicated to a Third Party
A defamatory statement is published when it is made to at least one person who is not the subject of the statement in question. It is not necessary that the defamatory statement be communicated to multiple people.
Even if the statement is communicated to a single person other than the defamed party, the statement will be considered published. Restat. 2d of Torts § 577 cmt. B.
While defamatory statements are typically oral (slander) or written (libel) communications, they can also include body language and gestures. Restat. 2d of Torts § 577 cmt. A.
The Third Party Must Understand the Defamatory Nature of the Statement
To illustrate, if the alleged defamer shouts a defamatory statement at a loud rock and roll concert, but no one actually hears it or can recall what was shouted, then there will be no defamatory publication.
By way of another example, if the defamer communicates a defamatory statement in a language that the third party does not understand, then there will be no legal publication, and thus, no liability for defamation. Restat. 2d of Torts § 577 cmt. D.
The Self-Publication Exception
As a general rule, a plaintiff cannot succeed on a defamation claim if:
However, some states, such as California, Minnesota, and Kansas, recognize an exception to this rule – called the self-publication exception.
In those states, a plaintiff may succeed on a defamation claim if the defendant communicates a defamatory statement to the plaintiff, and the plaintiff is subsequently compelled to publish that statement. But one of the following two conditions must exist:
However, the self-publication exception is a minority approach and has been rejected by most states. See Cweklinsky v. Mobil Chem. Co., 267 Conn. 210 (2004); White v. Blue Cross & Blue Shield of Mass., 442 Mass. 64 (2004); Gore v. Health-Tex, Inc., 567 So. 2d 1307 (Ala. 1990).
Self-Publication Exception Examples
An example of the self-publication exception commonly exists in the employment context. Say an employer fires an employee for allegedly stealing company money. Even though the allegation is false, the employee accepts the termination and seeks out a new job.
During the former employee’s new job interview, he is asked why he left his old job. He admits that his employer believed he stole company money. Despite the former employee’s denial of the allegation, the new employer refuses to hire him.
In this case, it is reasonably foreseeable that the former employee might divulge the reason for his firing.
In Lyon v. Lash, 74 Kan. 745 (1906), the plaintiff’s niece sent a letter to the plaintiff’s mother that included allegedly libelous language accusing the plaintiff of preventing her (niece) from receiving a share of her deceased grandfather’s estate. Because the plaintiff’s mother was illiterate, the plaintiff read the letter out loud to her.
The court found that the plaintiff reading the letter aloud to her mother did not meet the publication requirement. This is because the plaintiff voluntarily disclosed the defamatory contents of the letter to her mother. Therefore, the niece could not be held liable for defamation.
Lyon established that while a defamer may still be considered a “publisher,” even if the target of the defamation was the actual party to communicate the statement in question, this will typically only apply when the plaintiff is unaware of the defamatory nature of the statement.