Defamation Publication

jacknife

I'm wondering if anyone can help me with this one for academic purposes

As one of the criteria for defamation is publication does the following amount to publication

A letter to addressed a married couple making defamatory statements implying both of them, nothing specific mentioning either one; as husband and wife are seen as the one entity on occasions would this amount to a publication as in theory the husband is defamed to the wife and vice versa

As far as i know this has not come up before

If someone dictates a letter to their secretary or a third party and that letter contains defamatory statements will that amount to a publication, i found and old English case on this. Salmond and Heuston
I cannot find anything to say

Any case law or academic commentary would be appreciated

Mr. Incognito

If it was sent to them directly there is no publication for the purpose of the act.

It has to effect reputation in the eyes of another.

Peregrinus

But a letter sent to the husband could defame the wife (or vice versa). And that would still be true even if the letter was also sent to the other spouse.

Consider 3 cases:

1. I write a letter addressed to Joe and Mary (who are married) alleging that Mary is having an affair with Bill, that she engages in shoplifting, and that she exchanges sexual favours for gin. Joe reads the letter. I have defamed Mary to Joe.

2. I write a letter to Joe and Mary alleging that someone is dealing heroin out of Joe and Mary's house, but I do not name either Mary or Joe. Joe reads the letter. He and Mary are the only people living in the house. Joe knows that he is not dealing heroin; therefore, if anyone is, it is Mary. I have defamed Mary to Joe.

3. I write a letter to Joe and Mary alleging that Joe and Mary jointly committed a bank robbery. Joe reads the letter. Joe knows, of course, that the allegation cannot be true. Since Joe does not credit the allegation, while I have technically defamed Mary to Joe (I have said something to him that would tend to lower Mary's reputation in the eyes of right-thinking people) damages will be nominal, since her reputation has not in fact been lowered in Joe's eyes, and the allegation has not been published to anyone else.

Victor

jacknife wrote: »

I'm wondering if anyone can help me with this one for academic purposes

As one of the criteria for defamation is publication does the following amount to publication

A letter to addressed a married couple making defamatory statements implying both of them, nothing specific mentioning either one; as husband and wife are seen as the one entity on occasions would this amount to a publication as in theory the husband is defamed to the wife and vice versa

As far as i know this has not come up before

Well, what does the Defamation Act say about spouses?

One doesn't need to name someone to defame them. One could accuse the former inhabitant of 10 Downing Street of culinary bestiality and the identity would be easily deduced.

If someone dictates a letter to their secretary or a third party and that letter contains defamatory statements will that amount to a publication

That is publication and I can't see how such publication would be protected.

A more interesting point of view would be an allegation stated to a solicitor and the solicitor dictates a letter to their secretary including the allegation.

Carawaystick

There was an english case a few years ago where it turned on a text from fella A to Fella B was publication
which it was, and the newspaper report I read was excercised by this novel interpretation of publication.

Pat Mustard

Carawaystick wrote: »

There was an english case a few years ago where it turned on a text from fella A to Fella B was publication
which it was, and the newspaper report I read was excercised by this novel interpretation of publication.

I wonder about that because making a defamatory statement to a person about themselves is not publication, of itself. See section 6(4) of the Defamation Act 2009:

(4) There shall be no publication for the purposes of the tort of defamation if the defamatory statement concerned is published to the person to whom it relates and to a person other than the person to whom it relates in circumstances where—

(a) it was not intended that the statement would be published to the second-mentioned person, and

(b) it was not reasonably foreseeable that publication of the statement to the first-mentioned person would result in its being published to the second-mentioned person.

I realise that you are talking about an English case but my understanding the UK law is that the same principle applies.

Who was the third party in this instance? The phone company?

Do you have a citation or a link to a report of this case?

EDIT: A quick google shows that english law refers to publication by reference to other UK legislation under a Broadcasting Act, so without having sight of the case to which you refer, I'm unsure that the position outlined by you applies in Ireland.

Peregrinus

(Carawaystick doesn't say that the text from Fella A to Fella B was held to be defamatory of Fella B. It could have been defamatory of Fella C, and the text to Fella B was held to be sufficient publication to allow Fella C to sue.)

Pat Mustard

Ah, I see.

I had assumed that he meant the other.

Carawaystick

Peregrinus wrote: »

(Carawaystick doesn't say that the text from Fella A to Fella B was held to be defamatory of Fella B. It could have been defamatory of Fella C, and the text to Fella B was held to be sufficient publication to allow Fella C to sue.)

It was this

I'm fairly sure I read it in the FT around 2009/2011 timescale

A ten minute google finds nothing to support me though.

Peregrinus

Carawaystick wrote: »

It was this

I'm fairly sure I read it in the FT around 2009/2011 timescale

A ten minute google finds nothing to support me though.

I don't know that it's the kind of judgment that would receive a lot of attention.

Of course a text message can be a mode of publication. Why in God's name wouldn't it be?