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Publication of a Defamation

Publication of a Defamation

A lawsuit for defamation has the following basic elements: (1) making a false statement; (2) about a person; (3) to others; and (4) actual damages (if the harm to the person is not apparent). There is a fifth element when the person is a public official or public figure. The person who made the statement has to have made it with a known or reckless disregard of the truth. This article discusses the third element, making a statement to others, known as publication.

Publication Versus Private

A plaintiff who brings a lawsuit for defamation must prove that the defendant's defamatory statement was "published." Published means that the statement was intentionally or negligently communicated by the defendant to someone other than the plaintiff. It is possible, for example, to have what is known as "libel by will," because a will is a writing designed to be published to others after the maker's death.

On the other hand, if the defendant makes a statement directly to the plaintiff and in private (e.g., an undictated letter sent directly to the plaintiff), and if the statement is not revealed by the defendant or overheard and understood, the statement is not "published." Such private statements cannot harm the plaintiff's reputation, which by definition is the esteem to which the plaintiff is regarded by others.

In the 1914 case Economopoulos v. A.G. Polland Co., the defendant, when no one else was present, accused the plaintiff of theft. The defendant then repeated the accusation in Greek in the presence of others, but those other people did not understand Greek. The court ruled that there was no publication and no slander because, where only the plaintiff understood the accusation, his reputation was not harmed.

How Many Defamations?

A libel or a slander is committed every time the false statement is repeated by its original maker or by someone who does not attribute the false statement to the original maker or another maker. Attribution is how journalists and others avoid committing defamation (e.g., "Jane Doe said Richard Roe is a lousy landscaper."). The addition of the attribution makes the entire statement true (e.g., It is true that Jane Doe said Richard Roe is a lousy landscaper.). Where a possibly false statement has been alleged or reported by another, journalists and others can avoid committing defamation by indicating that the statement was "alleged" or "reported" by another (e.g., "According to reports in the local media, Jane Doe alleged that Richard Roe was a lousy landscaper."). If it is true that a bad reputation or rumor exists, the bad reputation or rumor can be truthfully referred to (e.g., "Richard Roe and his associates are rumored to be lousy landscapers").

Multiple copies of a publication containing a defamatory statement do not create multiple publications of the defamatory statement, because the entire edition of a periodical, book, broadcast, or other similar publication is treated as a single publication.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.