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A says to B, "You are a lousy drug dealer." They are overheard by a bystander, C, with consequent damage to B, who really isn't a drug dealer.

My understanding is that "defamation" does not exist for conversations between two parties, but does occur when one or more third parties become involved. So the issue here is, at what point does C become a third party. I'll use two cases for illustration:

1) A, B, and C are together in the same room. A addressed B but not C.

2) A and B are inside a building, C walks by at the "right" moment and overhears A's remarks through an open window. He also sees A and B.

Do either or both of these cases constitute defamation of B by A to C?

  • Of course, it could arguably be defamatory, although not libel per se, even if he was a drug dealer. (Perhaps "lousy" is a matter of opinion, however.) – ohwilleke May 11 '18 at 18:06
  • @ohwilleke: I believe "lousy" is protected speech under opinion. So is a word like "poor." (A millionaire could be considered "poor" by a billionaire.) But saying that someone is "poor" to the point of going through garbage cans for food (if untrue) would probably be actionable as being "highly offensive to a reasonable person." The other thing is that if someone actually is a drug dealer s/he is "lousy" almost by definition. – Libra May 12 '18 at 0:17
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The answer is likely "yes" in both scenarios, because defamation can be either intentional or negligent. This is what the Restatement says:

(1) Publication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed. . . .

COMMENTS & ILLUSTRATIONS

Comment:

a. Manner of making publication. A publication of the defamatory matter is essential to liability. (See § 558). Any act by which the defamatory matter is intentionally or negligently communicated to a third person is a publication. . . .

. . .

k. Intentional or negligent publication. There is an intent to publish defamatory matter when the actor does an act for the purpose of communicating it to a third person or with knowledge that it is substantially certain to be so communicated. (See § 8A).

It is not necessary, however, that the communication to a third person be intentional. If a reasonable person would recognize that an act creates an unreasonable risk that the defamatory matter will be communicated to a third person, the conduct becomes a negligent communication. A negligent communication amounts to a publication just as effectively as an intentional communication.

Illustrations:

  1. A and B engage in an altercation on the street where there are a number of pedestrians. During the course of the quarrel, A in a loud voice accuses B of larceny, the accusation being overheard by a number of passers-by. A has published a slander.

Restatement (Second) of Torts § 577 (1979).

  • I agree that you have correctly stated the relevant rule of law. I agree that a statement in scenario 1 of the question would be either intentional or negligent. In scenario 2 of the question, it is clearly not an intentional publication, and I think it would be a close call to say that it was negligent and more likely than not would not be found to be a negligent publication either. – ohwilleke May 11 '18 at 18:04
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Scenario 1) amounts to defamation because A was aware that his statement would be heard by C. Scenario 2) depends on the circumstances. A reasonable likelihood (and A's awareness) that people frequently walk by that window might constitute circumstantial evidence that A's statement was made negligently.

  • So if they are in "farm country" where people aren't likely to walk by (other than C this one time), A probably wouldn't be found negligent. Right? – Libra Jul 11 '18 at 18:10
  • Possibly. But it largely depends on each party's argument and/or evidence on whether others' presence/overhearing/eavesdropping is a far-fetched possibility under the circumstances. If C was an intruder hiding in a haystack, A might prevail. By contrast, B might prevail if C is a farmer and/or A stated his falsehoods very loudly. – Iñaki Viggers Jul 11 '18 at 18:36

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