This section is from the book "Popular Law Library Vol4 Torts, Damages, Domestic Relations", by Albert H. Putney. Also available from Amazon: Popular Law-Dictionary.
Since the basis of an action for defamation is damages for the injury to character in the opinion of other men, proof of the publication of the defamatory words is essential to the maintenance of an action for libel or slander.47 There must be a communication to some person other than plaintiff, and defendant;48 charges made to the plaintiff alone, and not heard by any other party, will never furnish a basis for an action of slander, even although they may occasion much suffering to the plaintiff.49 It is sufficient, however, if the defamatory words come to the knowledge of a third person, without being especially addressed to him. The question of publication is thus discussed by the Court of Appeals of New York in the Case of Youmans vs. Smith 50
"An action to recover damages for libel cannot be maintained upon proof simply that the libelous words were composed, and were in existence as written or printed matter, without being known to any one except the author and the victim. Unless communicated to some third person, no damages, either actual or presumptive, can result. As said by a learned author: 'Until the publication, the act is not complete in its mischief. Before it is dispersed abroad, it can produce no present or actual injury, and until then there is a locus penitentiae on the part of those concerned in the composing and writing.' Holt, Libel, 281.
47 25 Cyc, 365; Weir vs. Hoss, 6 Ala., 881; Youmans vs. Smith, 153 N. Y., 214; 47 N. E., 265; Sun Life Assn. Co. vs. Barley, 101 Va., 443; 44 S. E., 692.
48 Willrard vs. Mellor, 19 Colo., 539; 36 Pac, 148; Frank vs. Kam-ichky, 109 111., 26; Yousking vs. Dare, 122 Iowa, 539; 98
N. W., 371; Dare, 122 Iowa,
539; 98 N. W., 371. 49 Terwilliger vs. Wands, 17 N. Y.,
54, 63; and Wilson vs. Gait,
17 N. Y., 442. 50 153 N. Y., 214; 47 N. E., 265.
Printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person, provided that result actually follows. He who furnishes the means of convenient circulation, knowing or having reasonable cause to believe that it is to be used for that purpose, if it is in fact so used, is guilty of aiding in the publication and becomes the instrument of the libeler. Trumbull vs. Gibbons, 3 City H. Rec, 97; Rex. vs. Burdett, 4 Barn. & Ald., 95, 143; Rex vs. Clerk, 1 Barnard, 304; Baldwin vs. Elphinstone, 2 W. Bl, 1037; Rex vs. Paine, 5 Mod., 105; 107 Bish. Cr. Law, S. 927; Townsh. Sland. & L. S. S., 104; 115 Hall, Libel, 293; 2 Starkie, Sland. & L., 225; Odgers, Sland. & L., 157; Flood, Libel, 46; Cooke. Defam., 138. It is very clear from these authorities that as the defendants, through their agent, printed the libel and delivered the printed copies to the author, knowing that he intended to submit them to various persons to be read, they became liable as publishers, from the moment that any third person read the libelous matter, provided the words were not privileged."
Publication to members of plaintiff's family is sufficient.51 Communications to defendant's wife, however, do not constitute a publication.52
Merely to compose or write a libel is not publication.53 If a libel was not intended for publication, and copies were taken without the consent of defendant, there is no publication by defendant.54 But in an action against the manager of a mercantile agency for libel in making a false report of plaintiff's business standing, publication of the libel was held to be sufficiently shown by proof that the books in which it was contained were not in the defendant's exclusive possession, but that others in his office had access thereto, and that they and a merchant in the city heard or read the alleged slander.55
51 Miller vs. Johnson, 79 111., 58.
52 Sesler vs. Montgomery, 78 Cal., 486; 21 Pac, 185; Wennhok vs. Morgan, 202 B. D., 635; 52 J. P., 470.
53 Prescott vs. Tansey, N. Y. Super.
Ct., 12. 54 25 Cyc, 367; Weir vs. Hass, 6
There may be a sufficient publication of the libel by sending a letter through the mail,56 but such publication is not complete until the letter is received and read.57 The publication of a libel contained on a postal card is complete as soon as such postal is mailed,58 and the delivery of a libel to a telegraph company for transmission is a publication.59 There is no publication of a libel by sending it through the mail in a sealed letter addressed to the person libeled,60 unless the sender of the letter had reason to believe that such letter would be opened and read by another person.61 A writing in an unsealed envelope to the person who was defamed thereby is not a publication of the writing, in the absence of a showing that its contents were communicated to some third person or persons.62
The dictation of a libelous matter to a stenographer, by whom it is typewritten and a typewritten copy is made and transmitted to plaintiff, is a publication of such libel.63
It is held in some cases that an action for either slander or libel can be brought in such a case.64