Unintended Publication

Posted on July 2, 2009 by Adrianos Facchetti

If you've been reading the California Defamation Law Blog for any period of time, you'd know that publication is a necessary element of any cause of action for defamation.

What you probably don't know, however, is that the publication element can be met even if the publication was unintentional, or negligent.

For example, suppose I send you a personal letter to your house full of all sorts of defamatory statements.  Suppose as well, that I know you are rarely home and that other people in your home may read your e-mail.

While this would not constitute an intentional publication since I addressed it only to you, it would most certainly constitute negligent publication because I knew that you were seldom at home and that other people might read my letter.

On the other hand, suppose you live alone and that I send you the same letter and someone steals my letter before it gets to you and they post it on the Internet.  Well, this would probably not constitute publication because it is not foreseeable that someone might steal my letter.

So, the bottom line is that publication can be negligent and intentional.  I bet you didn't know that.

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You Don't Want to Overlook this Element of Defamation

Posted on April 26, 2009 by Adrianos Facchetti

California Defamation law is not as simple as many lawyers and other people may have you believe. There are several elements necessary to prove a cause of action for defamation, and one of the most overlooked elements is publication.

Publication is a term of art. This means that it has a specific legal meaning. A statement is deemed "published" if the statement has been communicated to a third party, whether orally or in writing. For example, if John Doe comes up to you and says that you're a crook and that you've been convicted of murder and no one else hears it, the publication element is not met. But this is the easy scenario.

What happens if someone merely passes along the alleged defamatory statement? Are they liable to the same extent as the original person who published the statement? The answer is yes.

The law calls this "republishing" and will hold the republisher just as liable as the original publisher. So let's take the example from above: suppose someone overhears John Doe and then relays the statement to Joe Shmoe's employer, Bill Breaker. In this case, the person who relayed the information to Bill Breaker would be liable to you in the same way that John Doe would be liable to you.

Publication can become more complicated and I'll discuss another uncommon wrinkle in the next post.

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