What is the smallest audience for a communication that has been deemed capable of defamation?

Question

Descriptions of the criteria for defamation seem widely to describe any statement that is communicated to a third party as being defamatory if they are (broadly speaking) false and harmful.

This seems to allow for the possibility that relatively private communications can be deemed defamatory, even though most high-profile defamation cases involve public statements accessible to large if not unlimited audiences. Of course, the smaller the audience the more unusual it seems likely to be that such a communication could meet the serious harm test of the Defamation Act 2013, yet it doesn't seem impossible that the right lie told to the right person could yet have serious enough consequences to be defamatory.

Are there examples of very small-scale communications that have been tested for their ability to defame?

Tagged england-and-wales since inspired by Nigel Farage's claim that internal correspondence shared internally between employees of a bank were defamatory, but other jurisdictions welcome too.

Answer 1

canada

Damages for libel have been awarded based on publication to a single individual.

The elements of defamation are (Grant v. Torstar Corp., 2009 SCC 61, para. 28):

(1) that the impugned words were defamatory, in the sense that they would tend to lower the plaintiff’s reputation in the eyes of a reasonable person; (2) that the words in fact referred to the plaintiff; and (3) that the words were published, meaning that they were communicated to at least one person other than the plaintiff.

For an example, see Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A). A letter "imputing unchastity" of a housekeeper was sent to a single individual.

Answer 2

1

australia

To be defamatory, the material has to be published (communicated by any means, including written, orally, pictorially) to at least one person other than the person making the claim.

Arts Law Information Sheet

Whether disclosure to one person can cause real harm depends on what is told and to whom. A lie to a (prospective) employer, University admissions officer, or security service vetting agent could be very damaging.

Answer 3

Consider the case of Oscar Wilde v the Marquess of Queensbury, which has become a text-book example.

Queensbury handed to a porter at Wilde's club a calling card on which he'd written something like 'To Oscar Wilde posing as a somdomite [sic].(accounts vary, but not relevantly.)

The people actually seeing the comment on the card might have included only the porter but a potentially much larger audience was undoubted.

The law being more stringent back in 1895, Queensbury was apparently arrested and criminally charged with libel.

As it happens, Wilde lost his case on the grounds that Queensbury's remark was not defamatory but rather, true but even that is not relevant.

What matters is that the card was left lying around the club and might have been seen by anyone picking it up and turning it over - or simply by the porter to whom it was actually given.

That is to say, the audience need be no larger than 'perhaps one or more'.

Of course if it was established that the audience was in fact no more than one, damages would be correspondingly small and but the degree of defamation is not the point: libel did or dit not occur.