Publication and Republication

• Author: Roger McConchie; David Potts
• Profession: Member of the Bars of British Columbia and Alberta/Member of the Bar of Ontario
• Pages: 257-287

CHAPTER F 0 U RTEEN:

Publication

and

Republication

A.

AN

ESSENTIAL ELEMENT

Proof

of

publication

by the

defendant

to a

third party

is an

essential element

in an

action

for

defamation

and the

burden

of

proving this element rests

on

the

plaintiff.

Gaskin

v.

Retail

Credit

Co., [1965] S.C.R.

297 per

Ritchie

J. at 1.

Arnottv.

College

of

Physicians

and

Surgeons

of

Saskatchewan,

[1954]

S.C.R.

538

per

Locke

J. at

555.

Dickhoffv.

Armadale

Communications

(1993),

108

D.L.R.

(4th)

464,

per

Lane

J.A.

at 469

(Sask. C.A.).

Pressler v. Lethbridge (2000), 86 B.C.L.R. (3d) 257, per Southin J.A. at para.

53

(C.A.).

B.

PUBLICATION REQUIRES COMMUNICATION

There

is a

distinction between publication

and

simply creating

or

uttering

defamatory

expression. Publication requires

an act on the

part

of the

defen-

dant which communicates

the

defamatory expression

to a

third party

McNichol

v.

Grandy,

[1931]

S.C.R.

696, where Anglin

CJ.C.

states

at

699:

The

material

part

of the

cause

of

action

in

dispute

is not the

uttering,

but the

publication,

of the

language

used

(Hebditch

v.

Madlwaince

[1894]

2

Q.B.

54,

at

58, 61, 64,

O'Keefe

v.

Walsh

[1903]

2

Ir.

R.

681,

at

706).

and at the

same page approves

the

following statement

from

Clement

Gatley

Galley

on

Libel

and

Slander,

2d ed.

(London: Sweet

&

Maxwell, 1929)

at 92:

257

258

CANADIAN LIBEL

AND

SLANDER

ACTIONS

...

publication

can be

effected

by any act on the

part

of the

defendant which

conveys

the

defamatory

meaning

of the

matter

to the

person

to

whom

it is

communicated.

Newson

(Chief

Provincial

Firearms

Officer

for

B.C.)

v.

Kexco

Publishing

Co.

(1995),

17

B.C.L.R.

(3d)

176 per

Lambert J.A.

at

para.

21

(C.A.):

But

publication

for the

purposes

of

libel means communication,

not

creation

of the

text

for the

purposes

of

printing.

Pullman

v.

Hill

&>

Co.,

[1891]

1

Q.B.

524 per

Lord Esher M.R.

at

527:

What

is the

meaning

of

'publication'?

The

making known

the

defama-

tory

matter

after

it has

been written

to

some person other than

the

per-

son of

whom

it is

written.

C.

ONE

PERSON SUFFICIENT

Publication

to one

person other than

the

plaintiff

is

sufficient

to

constitute

the

cause

of

action

for

defamation.

McNichol

v.

Grandy,

above

at

699,

approving

Duke

of

Brunswick

v.

Harmer

(1849),

14

Q.B.

185 at

188-89.

D.

EACH PUBLICATION

IS A

SEPARATE CAUSE

OF

ACTION

Every

sale

or

delivery

of a

written

or

printed

copy

of a

libel

is a

fresh

pub-

lication,

for

which

an

action lies.

Lambert

v.

Roberts

Drugstores

Ltd.,

[1933]

4

D.L.R.

193,

per

TruemanJ.A.

at

195

(Man.

C.A.).

Similarly,

each slanderous statement

is a

distinct

tort. Every

person

who

repeats

the

slander becomes independently liable

to the

plaintiff.

Stewart

v.

Sterling

(1918),

42

O.L.R.

477,

per

Clute

J. at

para.

16

(C.A.),

cit-

ing

W.B. Odgers

&

WJ.

Tremecar,

Odgers

on

Libel

and

Slander,

(Canadian

notes only),

5th ed.

(London: Stevens,

1912)

at

177.

Pootlass

v.

Pootlass

(1999),

63

B.C.L.R.

(3d) 305,

per

Burnyeat

J. at

para.

14

(S.C.),

citing

Emmerton

v.

University

of

Sidney,

[1970]

2

N.S.W.R.

633

(N.S.W.C.A.)

and

Thomas

v.

Canadian

Broadcasting

Corporation

and

Sanders,

[1981]

4

W.W.R.

289

(N.W.T.S.C.).