Publication is an essential element of any defamation claim. It exists when a communication is made to a third party (i.e., someone other than the person defamed, and other than the person making the statement). This is because the essence of libel and slander is the diminution of one’s reputation in the eyes of others. A false accusation made privately to you may be insulting, but it wouldn’t be defamatory because a statement not heard by others would not affect your reputation. But what if the false accusation is made in a setting that isn’t so private—a courtroom, for example? Could a devious tortfeasor avoid defamation liability by addressing his comments only to the plaintiff despite speaking loudly enough that third persons are likely to hear the statements?
Most Virginia cases defining publication describe a situation where a statement is made directly to a third party. (See, for example, Thalhimer Bros. v. Shaw, 156 Va. 863, 871 (1931) (defining publication as the “uttering the slanderous words to some third person so as to be heard and understood by such person”); Tomlin v. Int’l Bus. Machines Corp., 84 Va. Cir. 280 (2012) (referring to “the element of publication to a third party”)). Publication is a broader concept than these definitions suggest. The Restatement defines publication more comprehensively as communication of defamatory matter “intentionally or by a negligent act to one other than the person defamed.” The Virginia Supreme Court implicitly adopted the Restatement position in Food Lion, Inc. v. Melton, 250 Va. 144 (1995), where it held that the publication element is satisfied where, “when the defendant addressed the defamatory words to the plaintiff, another person was present, heard the words spoken, and understood the statement as referring to the plaintiff.”
Under this definition, the publication element will be met where the the interception of the communication by a third person is a natural and probable consequence of the speaker’s actions. Sending a postcard, for example, is supposedly intended as a communication directed at a particular individual, but because it is not sealed in an envelope, anyone who happens to see it lying around can read it. A student who sends a message to another student by taping a note to the student’s locker knows that passersby will be able to read the note as well. If the post card or locker note is defamatory, publication would likely be found to exist in these scenarios because the writer knows or should know that third persons will likely be exposed to the statements.
Let’s look at a real-world example. A few days ago, Judge Robert E. Payne of the Eastern District of Virginia issued a decision in a case of two bickering lawyers, Melissa Elizabeth Danjczek v. Anthony G. Spencer. You can read about the facts of the case here, but the gist of the allegations goes something like this:
Anthony G. Spencer is the Commonwealth’s Attorney (chief prosecutor) for Caroline County. Melissa Danjczek is a criminal defense attorney who used to work in Spencer’s office. One day in May 2015, Danjczek was defending a client on a DUI charge when Spencer (who happened to be in the courtroom for an unrelated matter) spotted a law book in Danjczek’s possession that he believed belonged to him. He interrupted the proceedings to accuse her of taking the book from his office. When Danjczek wouldn’t give him the book, he shoved her and grabbed it. Later that day, he filed a criminal complaint against Danjczek for larceny. Danjczek eventually filed a lawsuit of her own, alleging defamation, intentional infliction of emotional distress, and a host of other claims.
Danjczek’s defamation claim was based on the statements made by Spencer in his criminal complaint, but that claim was destined to fail because statements made in the course of legal proceedings are protected by absolute judicial privilege. Judge Payne recognized, however, that Danjczek could have based her claim instead on the accusations of theft that Spencer made in the courtroom, as Spencer was not involved in the DUI proceeding Danjczek was handling and his statements were not made in connection with that proceeding. (Citing the rationale for absolute immunity, Judge Payne explained, “unrestricted speech in litigation refers to unrestricted advocacy, not unrestricted interjections from the gallery.”) He therefore dismissed the defamation claim as privileged but allowed leave to amend so that Danjczek could base her claim on the non-privileged statement.
Though Judge Payne did not discuss the element of publication in his opinion, Danjczek should be careful to address it when she re-files her complaint. According to her original allegations, Spencer directed his accusation to her, not to any third parties. Accusing someone falsely of theft isn’t slander unless the message is communicated to at least one third party.
Spencer allegedly made the accusation in open court, but how loudly did he speak? Who was within earshot of his statements? If he whispered in Danjczek’s ear and his statements were not heard by anyone other than Danjczek herself, then his accusations of theft–even if false–cannot be the basis for defamation liability. On the other hand, if he spoke loudly enough to suggest he either intended that others in the courtroom would hear his comments, or loudly enough that he should have known others in the courtroom would hear his comments, Danjczek would have a valid prima facie claim, at least with respect to the first two elements of defamation liability (“publication” and “actionable statement”).