In Los Angeles and San Diego, Can an Employee, Dismissed for Reasons Allegedly False and Defamatory, Who Republishes the Defamatory Statements to Others, Maintain an Action Against the Former Employer.

It was the law for many years that a company could not commit defamation merely by repeating slanderous or libelous statements strictly within the organization. The idea was a corporate official, perhaps dictating to a stenographer, was repeating to no one the defamatory comments. But the law has been rapidly moving in another direction.

A San Francisco Appellate Court recently re-emphasized a rule first pronounced in California almost four decades ago. In 1980, a former probationary deputy sheriff sued the county that had employed him. The deputy admitted he republished the defamatory statements for which he was fired. The defendant county asserted the deputy’s republication was a voluntary disclosure of libelous matter — by the person defamed himself. The general rule is the originator of defamatory statements is not responsible for damage resulting from voluntary disclosure of the contents of such defamatory communications by the person defamed.

The court faced a dilemma. Public policy encourages truthfulness by a job applicant. “The law of defamation certainly cannot put a premium on lying or evasiveness.”[1] A dismissed employee may have few good choices. The person can be honest and hope the prospective new employer accepts his explanation; she or he can lie and risk being accused later of falsifying his job application; Or, she or he can try to evade the questions about prior work history.

The court finally decided a triable issue of fact existed about the county’s liability for the republications – notwithstanding the deputy’s admission he republished them. In setting forth a “Compelled Self-Republication Rule,” the court held the county made the defamatory statements to the deputy under circumstances that placed him under a “strong compulsion to disclose the contents of the statements to third parties.” The court ruled it was reasonably foreseeable the deputy would make such disclosures; he made them to police departments where he was seeking new employment; and, critically, the republications were not voluntary because they were required of him as a practical matter by his prospective police employers.

Counsel: See McKinney v. County of Santa Clara (1980) 110 Cal.App.3d 787, and Dible v.

Haight Ashbury Free Clinics, (2009) 170 Cal. App. 4thy 843.

[1] Smolla, Law of Defamation, Second Edition, p. 15-23