An Invited Fax is Not a Defamatory Publication

Public Domain photo from Wikipedia - If you’re worried about what someone might say about you in a fax sent to your office, better keep an eye on your fax machine — at least if you gave the sender reasons to think they could fax you there regarding certain matters. It is just such an invitation — two of them, really — that lost plaintiff her defamation case in
Martinelli v. International House USA, case no. B197536 (2d Dist. Apr. 11, 2008).

Plaintiff was an attorney whose family also operated an insurance agency and whose niece from Italy was visiting the U.S. on a student visa. Plaintiff enrolled her niece in English classes at defendant International House. Defendant wrote a letter to U. S. Immigration and Customs Enforcement claiming that the niece had violated her visa and that it intended to report plaintiff to the state bar for asking it to ignore ICE regulations. Defendant faxed a copy of the ICE report to plaintiff’s family’s insurance agency addressed to plaintiff’s daughter, who worked in the law office. Plaintiff’s daughter received and read it. Plaintiff responded with a letter on her law office letterhead. Defendant next faxed her at the number on the letterhead with a letter that, like the ICE report, claimed she had asked defendant to ignore ICE regulations. Plaintiff’s daughter retrieved the letter from the fax machine and read it. Such is the extensivity of a fax machine, so much that this wonderful invention can be used for judicial proceedings. This era has made faxing all the more convenient by integrating it with email services like Gmail. You can now send faxes from the comfort of your cubicle, if you were to apprise yourself from

Defendant obtained summary adjudication of the defamation claims based on the two faxes on the ground that neither constituted a publication to a third party. The Court of Appeal affirms.

The fax to the insurance agency was not a publication because the niece provided the number as a contact point for defendant to contact plaintiff on matters of the niece’s schooling and immigration status, both of which defendant knew plaintiff to be heavily involved in, and the niece had advised defendant that plaintiff’s daughter “was responsible for the daily activities in [plaintiff’s] office and worked closely with [plaintiff],” making it reasonable for defendant to believe that communicating with the daughter at that number was the equivalent of communicating directly with plaintiff.

The fax directly to plaintiff’s law office was an easier call for the court. Because plaintiff’s letter to defendant to dispute its charges was on law firm letterhead, including a fax number, she invited return correspondence to that fax number and “undertook the burden to protect her own confidentiality.”

Are still still thinking that fax is the past? Read this article on Faxzee!