7.3 Publication of the Communication

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 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. ¹² Whether the plaintiff can establish this element presents a jury question. ¹³

[Page 840]

The publication requirement means that a defendant's one-on-one communication to the plaintiff may not by itself support a cause of action. ¹⁴ However, that communication might support a claim under the related "insulting words" tort, which does not require publication. ¹⁵

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 is not intended to convey substantive information but rather to create a document, which may or may not then 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 cause of action if the document was not later shared with a third person. ¹⁶

It is important to remember that a publication undoubtedly occurs if the recipient's secretary opens and reads a defamatory communication. ¹⁷ 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 began to expand this doctrine, relying both on these earlier precedents and on the concept of corporate unity that the law also recognizes in the context of conspiracy claims. ¹⁸ Both state ¹⁹ and federal ²⁰ courts eventually extended this doctrine

[Page 841]

so far that most if not all intra-corporate communication failed the publication requirement.

Some courts resisted this trend, justifiably concluding that it could immunize knowingly false statements within the corporate setting. ²¹ 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 eventually criticized this extension. The court distinguished the earlier supervisor-subordinate cases and held that intra-corporate communications could satisfy the publication requirement. ²²

Inexplicably, 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. ²³

To be sure, intra-corporate communications frequently deserve qualified privilege protection. ²⁴ However, as the name implies, a qualified privilege does not provide the absolute immunity that the former intra-corporate nonpublication rule temporarily provided.

7.303 Other Publication Issues. In addition to being one of the essential elements of the defamation tort, publication can also become an important issue in several peripheral topics.

First, the statute of limitations defense can be affected by determining the date of each pertinent publication. ²⁵ Second, the analysis of whether an allegedly defamatory statement was "of and concerning" the plaintiff can depend on various publications of related statements. Third, both absolute and qualified privileges sometimes depend on the absence of publication beyond certain specific individuals. These topics are discussed below.

[Page 842]

7.304 Repetition by the Alleged Defamer.

A. In General. Common sense might indicate that a new cause of action arises each time a speaker or writer repeats an allegedly defamatory communication. ²⁶ However, Virginia Supreme Court opinions have added some complexity to this issue.

B. Repetition Creating New Cause of Action. Repetition by the original defamer raises many of the issues mentioned above in connection with the original publication of alleged defamation. For example, in Schnupp v. Smith, ²⁷ 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." ²⁸

C. Multiple Later Recipients of Defamatory Communication. Interestingly, a defendant's posting of an allegedly defamatory statement where it can be seen normally creates just a single cause of action. The law generally considers the alleged defamer to have published the words only once, even if separate readers or listeners view or hear the words later. Thus, a new cause of action generally does not arise each time someone else sees or hears the statement. ²⁹ On the other hand, that situation apparently can affect the amount of damages. ³⁰

D. Possible Repetition of the Defamation. Although a defamation plaintiff could argue that the 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. ³¹

[Page 843]

7.305 Republication by Others.

A. In General. When someone other than the original author repeats a defamatory communication, the analysis becomes even more complicated.

B. Liability of Original Defamer. Those publishing defamatory statements must be...