6. In a public place, person C talked to another person B in a loud voice, accusing a 3rd party (A) of some wrong doing. The conversation was defamatory of A. What C said was recorded by a member of the public who then uploaded the conversation to a website on the Internet. In these circumstances, C will be liable for the publication of those defamatory words against A when his conversation is heard by the public. However, when the public hear what C said on the Internet, who will be liable for the publication of the defamatory words?
A person is liable for unintentional publication of defamatory matter to a third party unless the person can show that such publication did not occur due to any want of care (lack of care) on his part.
Example: If C drops a defamatory letter on the street and B picks it up and reads it, C will be liable for the publication of the defamatory letter to B since such publication was due to his want of care in his custody of the document. (When he transports a letter, he has the duty to keep the letter confidential. If he carelessly dropped the letter and it is read by a passer-by, he would have breached this duty and therefore he would be liable for unintentional publication of defamatory matter.)
Applying the same principle to the subject question, C will be liable if he speaks in a loud voice (using defamatory words) in a public place allowing passers-by to overhear what he says.
Will C be liable for a defamatory conversation that was recorded and uploaded onto the Internet secretly by another person?
If person C can prove that he did not know a member of the public was recording the conversation and that he did not have any reason to suppose that someone within hearing distance would record it and place it on an internet website, he may not be liable for the second publication of the defamatory material on the Internet. However, due to the present advancement of technology, it is easy to record a conversation and upload it onto the Internet. This may increase the difficulty that C would have in putting the above defence forward.
Will the person who uploaded the defamatory conversation to the Internet incur any legal liability?
The member of public who recorded the defamatory conversation, and who placed the recorded conversation on the Internet and made the recording available to the public, has repeated the defamatory words to others. Referring to the answer to question 1, a second/repeated publication is a fresh instance of defamation. In that case, that member of public will be liable for the publication of that defamatory conversation.
The liability of the internet website (or the person/company that hosts the website) which contains the defamatory conversation will be discussed in the next question.