120 In Diplomat Electric Inc v Westinghouse Electric Supply Company 378 F 2d 377 (1968) (USCA, Fifth Circuit), cited in both these cases but for rather different purposes, the defendant wrote to the plaintiff saying that the plaintiff had been delinquent in paying its account and that the defendant would not continue to supply it with electrical equipment. Copies of the letter were sent to the owner, the head contractor, and the project manager of the project in which the plaintiff was electrical subcontractor. These communications to third parties were undoubtedly publications, and the reasons did not consider publication by communication to the plaintiff itself. Prosser, Law of Torts, 4th ed (1971) at 767 does not support the proposition for which it was cited in Advantage Personnel Agency Inc v Hicks & Grayson Inc; in the next edition, Prosser and Keeton on the Law of Torts (1984, with 1988 supplement) neither of Fausett v American Resources Management Corp and Advantage Personnel Agency Inc v Hicks & Grayson Inc nor the principle applied in those cases is referred to. The two decisions must stand on the force of their own reasoning.
121 Advantage Personnel Agency Inc v Hicks & Grayson Inc was cited, via a text, in Ontario Ltd v Canadian Uniform Ltd (Ont Ct, 12 June 1997; I have used a Lexis print). The second defendant wrote a letter withdrawing the plaintiff's status as an approved supplier "due to questionable business practises [sic]", adding other comments about honesty and ethics. The letter was signed by Ms Hooper of the second defendant, was addressed to the plaintiff attention Mr Politis, and was faxed to the plaintiff. It went to Mr Politis, who was the plaintiff's sales manager, and he showed it to Mr Yannakouras, the plaintiffs' president.
122 The Court said -
"The law is quite clear that to succeed, the plaintiff must prove publication to a person other than the plaintiff, a third party. A letter written to the plaintiff that is seen by no one but the plaintiff does not constitute the publication required to succeed in a libel action. There must be communication of the libel by the defendant to a person other than the person defamed.
There is difficulty when the plaintiff and defendant are corporations. Corporations can only act through employees. The letter that formed the basis of the libel was sent by the defendant, Loeb. Obviously, someone at Loeb had to be involved in its making and sending. The old cases which state that a personal defendant, for example a lawyer, who dictates a libellous letter to a secretary, publishes the letter even though the plaintiff is the only person who received the letter, do not relate well where there is a corporate defendant because it's the corporate defendant who dictates, types and sends the letter. Karen Hooper is not a defendant. Likewise on the other end, someone employed by the corporate defendant has to receive the letter. The letter is addressed to the attention of George Politis, the sales manager of the plaintiff company. Although George Politis is not the plaintiff, surely it is not publication if he alone receives the letter. Someone at the company has to receive the letter. Mr Politis takes the letter to Mr Yannakouras and throws it at him. Is that re-publication? Is it publication, given that Mr Yannakouras is the president of the company? In respect to corporations, Professor Raymond Brown, in his text The Law of Defamation in Canada Second Edition at 7-34, points out that American courts have distinguished between lower and upper echelon employees and concluded that communications to the latter must be treated as a communication to the plaintiff corporation. He quotes from a Florida Appeal Court decision which states:
'Although there may be cases in which a slanderous statement directed against a corporation could be published to a lower echelon employee of the slandered corporation, the rule must necessarily be different where the statements complained of are made to a corporate executive or managerial employee such as a sales manager. In such a case the statements are in effect made to the management of the corporation and thus to the corporation itself. The corporation has no cause of action for slander under these circumstances, as the essential element of publication to a third party is lacking.'
Ms Lovell submits that cases such as Pullman v Walter Hill [1891] 1 QB 525, Putterbaugh v The Gold Medal Furniture Manufacturing Co (1904) 70 LR 582 (CA) and Lawrence v Finch [1931] 1 DLR 689 (Ont. CA) are still the law of Ontario and there is publication even if the only persons who saw the letter were Mr Yannakouras and Mr Politis and the persons at Loeb.
Ms Lovell further submits that Mr Yannakouras said his staff saw the letter. I believe that particular evidence related to the acceptance letter but if it related to the letter received October 1st, there is no evidence as to how this came about and it easily could have been by republication by Mr Yannakouras.
In addition, Ms Lovell points out the letter was faxed and it should be presumed that someone other than Mr Politis or Mr Yannakouras received the fax. There is no evidence as to who first received the fax. If a low level employee saw the fax, surely he or she should be called because publication was always a live issue.
It is trite law to say that the onus is on the plaintiff to prove publication and I do not believe it has met that burden."
123 The reasoning included that communication to Mr Politis and Mr Yannakouras was not publication because the communication to them was communication to the company, and this must have been seen as the difference from Pullman v Walter Hill & Co Ltd and other such cases. The correct reference to Brown, The Law of Defamation in Canada, 2nd ed, is to para 7.9 (pp370-1). In the body of the text the author states that the publication may be made to any third person, whether the recipient is (inter alia) "the agent or employee of the defamer, or an agent or employee of the person defamed, even if the latter is a company". The case cited in the footnote reference appended to the last words is Traztand Pty Ltd v Government Insurance Office of New South Wales, immediately followed in the footnote by a passage in terms very close to the terms of the passage set out in Ontario Ltd v Canadian Uniform Ltd.
124 These decisions have not received recognition . For example, Gatley on Libel and Slander, 9th ed at para 6.6 says there is publication where the defamatory matter is published to the plaintiff's agent "even if the plaintiff is a corporation, although this is artificial in the extreme where the recipient is the controller of a 'one man company'." The only case cited is Traztand Pty Ltd v Government Insurance Office of New South Wales, and the trans-Atlantic qualification is absent.
125 It is well established that communication to the agent or employee of the person defamed may be publication where that person is a natural person see for example Duke of Brunswick v Harmer (1849) 14 QB 185; Pullman v Walter Hill & Co Ltd; Rudd v Cameron (1912) 4 DLR 567; Jones v Brooks (1974) 45 DLR (3d) 413. But Currububula is a company, and I do not think the cases to this effect can automatically be transposed to where the person defamed is a company. For reasons apparent from the preceding discussion, in accordance with principle I consider that a general statement as in Gatley on Libel and Slander is incorrect. Communication to someone who happens to be the employee of a company can be publication, but communication to a company by its employee is not publication.
126 It is necessary to take account of the related area of intra-company communications. Communication by one employee of a company to another was held to be publication in Riddick v Thames Board Mills Ltd (1977) 1 QB 881. Two members of the court, Stephenson and Waller LLJ, rejected the argument that there was no more than communication by the company to itself. Lord Denning MR dissented on that matter. The majority was swayed by cases in which a company had been held liable for letters dictated by a director to a typist (eg Pullman v Walter Hill & Co Ltd in its other consideration of publication); Lord Denning considered that in none of those cases was the point of publication properly argued. The cases are accepted in Gatley on Libel and Slander, 9th ed, para 6.7, but with recognition of the argument that a report produced by one employee and read by another is not published because the acts of the employees "are acts of the company and there is no liability for publication to oneself". It is said that this view is taken in some, but not all, American jurisdictions, and that "the underlying rationale is that the company can only operate through its employees".
127 In Jones v Amalgamated Television Services Pty Ltd Hunt J said, with reference to Riddick v Thames Board Mills Ltd, that he was satisfied that there was publication in law by the company's sales manager when she sent to managerial and secretarial employees copies of a memorandum to the plaintiff critical of his performance of his duties, but that he considered it still arguable that the company was not vicariously responsible for the publication when the receiving employees were "in effect acting as the agent of the company itself for the purposes of receiving the information which the defamatory matter conveyed" (at 365-6). Brown, The Law of Defamation in Canada, 2nd ed at para 7.12(5) (pp 388-9) refers to a strong minority view in the United States that intra-corporate communications are not publications because they are "the legal equivalent of talking to one's self".
128 The divergence of views in America is illustrated by the recognition of a special position for intra-company communications in 50 Am Juris 2d, Libel and Slander, 247 et seq, but rejection (or more correctly non-recognition) of it in Restatement 2d, Torts, 577.
129 I prefer the view that intra-company communications do not necessarily constitute publication for the purposes of the law of defamation, but in any event they may be distinguished from communications to a company received by its employee. I consider it open to hold that a communication to a company which, because the company can only act by natural persons, is received by someone on behalf of the company in the ordinary course of business, is communication only to the company and does not constitute publication. This is not confined to receipt of the communication by the company's managing director and alter ego, but includes receipt by any employee receiving the communication on behalf of the company. In my opinion it should be so held. Notwithstanding the high respect to be afforded to what was said by Hunt J in Traztand Pty Ltd v Government Insurance Office of New South Wales, particularly as a decision in the field of defamation, to the extent to which his Honour held otherwise (and I am not sure that he did) I am unable to agree.
130 The submissions in the appeal did not challenge publication by communication of defamatory matter to the plaintiff's agent where the plaintiff is a natural person. If the plaintiff has authorised his agent to receive the defamatory matter on his behalf, why should the communication not be regarded as a communication to the plaintiff whether or not the plaintiff is a company? Possibly this will one day call for reconsideration.
131 I return to Pullman v Walter Hill & Co Ltd, on which (as I have said) Currububula particularly relied in the appeal. I have already outlined the facts and the decision.
132 Lord Esher MR said (at 528) -
"The letter was not directed to the plaintiffs in their individual capacity; it was directed to a firm of which they were members. The senders of the letter no doubt believed that it would go to the plaintiffs; but it was directed to a firm. When the letter arrived it was opened by a clerk in the employment of the plaintiff's firm and was seen by three of the clerks in their office. If the letter had been directed to the plaintiffs in their private capacity, in all probability it would not have been opened by a clerk. But mercantile firms and large tradesmen generally depute some clerk to open business letters addressed to them. The sender of the letter had put it out of his own control, and he had directed it in such a manner that it might possibly be opened by a clerk of the firm to which it was addressed. I agree that under such circumstances there was a publication of the letter by the sender of it … ".
133 Lopes LJ said (at 529) -
"The sender might have written 'Private' outside it, in order to prevent its being opened by a clerk. The defendants placed the letter out of their own control, and took no means to prevent its being opened by the plaintiff's clerks. In my opinion, therefore, there was a publication of the letter, not only to the type-writer, but also to the clerks of the plaintiffs' firm."