7.3 Publication of the Communication

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.3 PUBLICATION OF THE COMMUNICATION

7.301 In General.

To be actionable, a defamatory communication must be conveyed to a third person. This process is called publication. ⁴⁰⁷⁰ Whether the plaintiff can establish this element presents a jury question. ⁴⁰⁷¹

Publication means that a defendant's one-on-one communication to the plaintiff may not by itself support a claim for defamation. ⁴⁰⁷² The communication might, however, support a claim for "insulting words," which does not require publication. ⁴⁰⁷³

7.302 Intra-Corporate Communication.

A. In General.

Virginia state and federal courts have debated whether certain types of communications can satisfy the publication requirement.

B. Traditional Doctrine.

The debate started in situations such as a supervisor dictating to a secretary. In those scenarios, the communication was not intended to convey substantive information but rather to create a document, which may or may not be communicated to others. A number of cases held that this supervisor-subordinate communication did not satisfy the publication requirement. This meant that there could be no defamation claim if the document was not shared with a third person. ⁴⁰⁷⁴

It is important to remember that a publication undoubtedly occurs if the recipient's secretary opens and reads a defamatory communication. ⁴⁰⁷⁵ In other words, a publication does not occur when an author's secretary reads the author's handwritten notes while typing up a letter, whereas a publication does occur when the recipient's secretary opens and reads a defamatory letter.

C. Expansion of the Doctrine.

Virginia courts expanded the intra-corporate communication doctrine, relying on earlier precedents and on the concept of corporate unity. ⁴⁰⁷⁶ State ⁴⁰⁷⁷ and federal ⁴⁰⁷⁸ courts have held that intra-corporate communications fail the publication requirement.

Other courts have resisted this trend, concluding that it could immunize knowingly false statements within the corporate setting. ⁴⁰⁷⁹ If intra-corporate communications could never satisfy the threshold publication requirement, an employer could, without any fear of liability, send a knowingly false memorandum accusing an employee of misconduct to several hundred thousand fellow employees.

D. Contraction of the Doctrine.

The Virginia Supreme Court has criticized expansion of the intra-corporate communication doctrine. The court has distinguished early supervisor-subordinate cases and held that intra-corporate communications can satisfy the publication requirement. ⁴⁰⁸⁰

Yet, in 2012, a Virginia circuit court held that an intra-corporate communication only among those with a "need to know" meant that the communication had not satisfied the "publication" requirement. ⁴⁰⁸¹

To be sure, intra-corporate communications frequently deserve qualified privilege protection. ⁴⁰⁸² However, as the name implies, a qualified privilege does not provide the absolute immunity that the former intra-corporate nonpublication rule provided.

7.303 Other Publication Issues.

Publication is an important issue in other areas, such as the statute of limitations defense, the analysis of whether a statement is "of and concerning" the plaintiff, and whether privileges to defamation have been abused by over-publication.

7.304 Repetition by the Alleged Defamer.

A. In General.

Common sense might dictate that a new claim for defamation arises each time a speaker or writer repeats an allegedly defamatory communication. ⁴⁰⁸³ The Virginia Supreme Court has added some complexity to this issue.

B. Repetition Creating New Cause of Action.

Repetition by the original defamer raises many of the issues that are raised in connection with the original publication of alleged defamation. For example, in Schnupp v. Smith, ⁴⁰⁸⁴ the Virginia Supreme Court indicated that a second statement intended to "amplify" an original defamatory statement might not constitute a new cause of action, even though the second statement was admissible on the issue of damages. Several years later, the Virginia Supreme Court adopted what seems to be the more logical approach that "generally subsequent republications of such a [defamatory] statement are separate torts." ⁴⁰⁸⁵

C. Multiple Later Recipients of Defamatory Communication.

Generally, a single publication of a defamatory statement creates a single cause of action. The law considers the defamer to have published the statement once, even if multiple persons read or heard the statement at separate times. A new defamation claim does not arise for each time the statement is so read or heard. ⁴⁰⁸⁶ The extent of publication can, however, affect damages. ⁴⁰⁸⁷

D. Possible Repetition of the Defamation.

Although a defendant might repeat a defamatory statement in the future, plaintiffs generally must establish more than just that possibility. In one Eastern District of Virginia case, the court rejected the plaintiff's claim that it was "likely" that the defendant would repeat a defamatory statement. ⁴⁰⁸⁸

7.305 Republication by Others.

A. In General.

When someone other than the original defamer repeats a defamatory communication, the analysis can become more complicated.

B. Liability of Original Defamer.

Those publishing defamatory statements should be concerned about more than just their own publication. In Virginia, as in many states, defamers risk liability for a third party's "republication" of a defamatory statement that the defamers authorize or that arises as the "natural and probable consequence" of their original defamation. ⁴⁰⁸⁹ On the other hand, if a third party makes an "independent and unauthorized" republication, the original defamer should not be liable for that act. ⁴⁰⁹⁰

Virginia courts have held that the original defamer...