AMI 412 Definition of Published and Publication

Use this instruction if either AMI 407, 408, 409, or 410 is given.

This instruction is based in part on Wal–Mart Stores, Inc. v. Lee, 348 Ark. 707, 731, 74 S.W.3d 634, 651 (2002).

In Navorro–Monzo v. Hughes, 297 Ark. 444, 763 S.W.2d 635 (1989), the court stated that “since the interest protected is that of reputation, it is essential to tort liability for either libel or slander that the defamation be communicated to someone other than persons defamed. This element of communication is given the technical name of ‘publication,’ but this does not mean that it must be printed or written; it may be oral, or conveyed by means of gestures, or the exhibition of a picture or statue” (citing Prosser & Keeton on Torts, § 113 (5th ed. 1984)).

A doctor's dictation to a stenographer regarding his nurse employee was not considered publication, and the doctor's letter to the nurse intercepted by the nurse's husband also was not publication, since the doctor could not have foreseen that anyone other than the nurse would open the sealed letter to her. Farris v. Tvedten, 274 Ark. 185, 623 S.W.2d 205 (1981).

If communications received by third parties are protected by a qualified privilege there may be no publication unless there was an abuse by making the statement excessively or maliciously. See Farris, supra.

For a discussion of the issue of republication, see Wal-Mart Stores, Inc. v. Lee, supra, where the court indicated that an instruction concerning the liability for republication should be submitted if the defendant seeks to limit its liability for republication.