§24.8 Publication

The Case: Sullivan v. Baptist Memorial Hosp. , 995 S.W.2d 569 (Tenn. 1999).

The Basic Facts: The plaintiff, a nurse, was terminated from her position at a hospital for misappropriating property, which allegations the plaintiff disputed. Subsequently, she applied for positions at two other hospitals where she was required to reveal the reason she had been terminated from her previous position. Neither hospital hired her.

The Bottom Line:

• "'Publication' is a term of art meaning the communication of defamatory matter to a third person. Quality Auto Parts Co. v. Bluff City Buick Co., 876 S.W.2d 818, 821 (Tenn. 1994)." 995 S.W.2d at 571-72.
• "This Court first considered the doctrine of self-publication in a non-employment context in Sylvis v. Miller, [33 S.W. 921 (Tenn. 1896)]. In Sylvis, the plaintiff received a defamatory letter through the mail which he opened and showed to several friends and relatives. The trial court instructed the jury that the plaintiff's publication of defendant's defamatory statements would not support a defamation action. On appeal, this Court reasoned that the 'defendant is not answerable for anything the plaintiff may choose to do with the letter after it has once safely reached his hands,' and held that '[i]f a person receives a letter containing libelous matter, he will not be justified in publishing it.' Id. at 922." Id. at 572.
• "Three years later, in Kansas City, M. & B. R. Co. v. Delaney, [52 S.W. 151 (Tenn. 1899)], this Court was again presented with an opportunity to adopt the doctrine of self-publication, this time in an employment setting. In Delaney, the plaintiff's agent obtained a recommendation letter from plaintiff's previous employer, which alleged that plaintiff, a union member, had left his employment during a strike. Though the defendant showed the letter only to the plaintiff's agent, the plaintiff showed the letter to potential employers. This Court stated that '[u]nder the authorities, the company is not liable for any of the consequences of the act of [plaintiff] in making publication of the letter after it reached his hands.' Id. at 152." Id.
• "Sullivan attempts to distinguish this early Tennessee precedent by arguing that the self-publication in Sylvis was outside the employment context and the self-publication in Delaney was voluntary. Sullivan contends that only 'compelled' self-publication in an employment context should be actionable." Id.

• "As one commentator has observed, however, 'compulsion' is present in every defamation case involving self-publication of the reason for termination by a former employer:

  'Compulsion' within the meaning of the doctrine would automatically occur when a prospective employer asks an applicant for his or her employment history and reason(s) for leaving the previous place of employment, and the applicant repeats the termination reason given by the former employer. All former employers will be held to have foreseen or to have had an obligation to foresee that the former employee would be asked to provide this information and would thus be 'compelled' to answer.

  [Ronald Turner, Compelled Self-Publication: How Discharge Begets Defamation, 14 Empl. Rel. L.J. 19, 27-28 (1988)]." Id.
• "Other states are split on how to resolve the question of self-publication. The minority view is that self-publication in the employment setting satisfies the publication requirement of defamation because the plaintiff is effectively compelled to publish the defamatory material to prospective employers. Thus, the self-publication is reasonably foreseeable to the former employer.See, e.g.,McKinney v. County of Santa Clara, 110 Cal. App. 3d 787, 168 Cal. Rptr. 89 (Cal. Ct. App. 1980);Munsell v. Ideal Food Stores, 494 P.2d 1063 (Kan. 1972); Grist v. Upjohn Co., 168 N.W.2d 389 (Mich. Ct. App. 1969); Lewis v. Equitable Life Assurance Soc'y, 389 N.W.2d 876 (Minn. 1986)." Id. at 573.

• "The majority of states addressing the issue do not recognize self-publication as constituting publication for defamation purposes, even when the publication is compelled in the employment setting.See,e.g., Gore v. Health-Tex, Inc., 567 So. 2d 1307 (Ala. 1990); Layne v. Builders Plumbing Supply Co., 569 N.E.2d 1104 (Ill. App. Ct. 1991), Yetter v. Ward Trucking Corp., 585 A.2d 1022 (Pa. Super. Ct. 1991).^FN3 Rejection of the doctrine of compelled self-publication is based on policy reasons, including the public's interest in open communication about employment information and limiting the scope of defamation liability:

  Both employers and employees have significant interest in open communication about job-related problems. Further, it is in the public interest that information regarding an employee's discharge be readily available to the discharged employee and to prospective employers. In our opinion, the doctrine of compelled self-defamation unduly burdens the free communication of views and unreasonably broadens the scope of defamation liability.

  Layne , 569 N.E.2d at 1111 (citation omitted).

  FN3 Federal courts applying state law also have recognized the majority rule. De Leon v. Saint Joseph Hosp., Inc., 871 F.2d 1229, 1237 (4th Cir. 1989) (applying Maryland law); Spratt v. Northern Automotive Corp., 958 F. Supp. 456, 465 (D. Ariz. 1996) (reasoning that Arizona courts are not among those that would recognize a tort of compelled self-publication); Sarratore v. Longview Van Corp., 666 F. Supp. 1257, 1263 (N.D. Ind. 1987) (reasoning that the doctrine of self-publication is not the law in Indiana); Hensley v. Armstrong World Indus., Inc., 798 F. Supp. 653, 657 (W.D. Okla. 1992) (stating that Oklahoma would follow the 'vast majority of states' considering the theory of self-publication and reject it). In other jurisdictions, the issue appears to be undecided. Weintraub v. Phillips, Nizer, Benjamin, Krim & Ballon, 568 N.Y.S.2d 84, 85 (N. Y. App. Div. 1991) (stating that New York law does not recognize a defamation claim where the plaintiff voluntarily republished the alleged defamatory words); Doe v. Smithkline Beecham Corp., [855 S.W.2d 248 (Tex. Ct. App. 1993)] ('While we are aware of non-Texas authority allowing 'self-defamation' claims under only a foreseeability test, the Texas Supreme Court has yet to adopt or approve such a broad cause of action. We decline to do so.'). For an overview of cases considering the self-publication doctrine, see generally [David P. Chapus, Annotation, Publication of Allegedly Defamatory Matter by Plaintiff ("Self-Publication") as Sufficient to Support Defamation Action, 62 A.L.R. 4th 616 (1988)]."

  Id .
• "We agree that the potential for defamation liability every time an employee is terminated would chill communications in the work place, preventing employers from disclosing reasons for their business decisions, and would negatively affect grievance procedures intended to benefit the discharged employee." Id. at 573-74.
• "We conclude that important policy concerns weigh in favor of our adherence to the majority view. For instance, plaintiffs allowed to avail themselves of the self-publication doctrine would have less incentive to mitigate damages. Layne, 569 N.E.2d at 1111. Because the statute of limitations in a defamation case begins to run from the date of publication, Quality Auto Parts Co., 876 S.W.2d at 821-22, and since a new cause of action arises with each publication, see id., a plaintiff relying on the doctrine of self-publication would not only have the ability to control the statute of limitations but also the number of causes of action which arise.In other words, a plaintiff need only apply for a job in order to create or renew a claim for 'compelled' self-publication. Consequently, the defendant employer could potentially be subject to liability throughout the plaintiff's lifetime." Id. at 574.
• "Moreover, we conclude that the doctrine of compelled self-publication conflicts with Tennessee's employee-at-will doctrine. Although Sullivan contends that an employer would be liable under the self-publication doctrine 'only' for negligently investigating and then stating a defamatory reason for termination when it is reasonably foreseeable that the former employee will be compelled to repeat and 'publish' this defamatory reason to potential employers, an employer in Tennessee has no duty to investigate before terminating an at-will employee. Cf. Stein v. Davidson Hotel Co., 945 S.W.2d 714, 717 (Tenn. 1997)." Id.
• "Accordingly, after considering the arguments of both parties, the record, and applicable law, we conclude that our holdings in Sylvis and Delaney are in accordance with the well-reasoned majority rule in other jurisdictions and are controlling in this case. We therefore decline to adopt the doctrine of compelledself-publication." Id. at 575.

Other Sources of Note: Tenn. Code Ann. § 29-24-104 (providing that radio and television stations are not liable for damages for any defamatory statement published or uttered as part of a broadcast unless the station fails to exercise due care to prevent the publication or utterance); Tenn. Code Ann. § 29-24-105 (providing that right of action against commercial printer is abolished where the copy of the libelous matter was furnished to the printer by the customer and no part of the libelous matter was written, edited or otherwise authored by the printer); Applewhite v. Memphis State University, 495 S.W.2d 190 (Tenn. 1973) (adopting "single publication rule" and holding "under Tennessee law a plaintiff should be limited to a single cause of action based on the circulation of copies of an edition of a book, newspaper, or periodical."); Woods v. Helmi, 758 S.W.2d 219 (Tenn. Ct. App. 1988), perm. appeal denied (Aug. 22, 1988) (holding that "communication among agents of the same corporation made within the scope and course of their employment relative to duties performed for that corporation are not to be considered as statements communicated or publicized to third persons.").

Recent Cases: Safro v. Kennedy , No. E2006-01638-COA-R3-CV, 2007 WL 1215052 (Tenn. Ct. App. Apr. 25, 2007) (vacating trial court's dismissal of defamation claim finding genuine issues of material fact as to whether defamatory statements were published and whether plaintiff incurred damages as a result).