dissenting:
The majority opinion, recognizing that it is making new law in Minnesota, adopts the doctrine of self-publication in defamation actions against former employers. This doctrine, as adopted here, would greatly increase employer liability, fundamentally ignoring the principle of mitigation of damages and recognizing, in thin disguise, the tort of wrongful termination rejected by our supreme court in Wild v. Rang, 302 Minn. 419, 234 N.W.2d 775 (1975). Accordingly, I would reverse. the trial court on respondents’ defamation claim.
Standard employment application forms, as well as nearly all employment interviewers, uniformly require information on past employment, almost always including reasons for termination of past employment. All employers can be held accountable for knowledge of this practice. Therefore, there is in virtually all cases of employee discharge a strong compulsion to republish, foreseeable to the employer. Since any statement adversely affecting an employee in his business or profession is defamatory per se, Stuempges v. Parke, Davis & Co., 297 N.W.2d 252 (Minn.1980), and all terminations for employee conduct or performance have this potential, all such terminations may give rise to a defamation action.
In light of Wild v. Rarig, I would reserve to the supreme court the making of new law on this subject. It is to be noted that California, the jurisdiction cited by the majority for its acceptance of the doctrine of “self-publication” in McKinney, has recognized a tort of wrongful termination. Tameny v. Atlantic Richfield Co., 164 Cal.Rptr. 839, 610 P.2d 1330 (1980).
The doctrine of self-publication inherently slights the important principle of mitigation of damages, particularly in the law of defamation. The Supreme Court has stated:
The first remedy of any victim of defamation is self-help — using available opportunities to contradict the lie or correct the error and thereby to minimize its adverse impact on reputation.
Gertz v. Robert Welch, Inc., 418 U.S. 323, 344, 94 S.Ct. 2997, 3009, 41 L.Ed.2d 789 (1974). The terminated employee has the best conceivable opportunity to lessen the damage caused by his reason for discharge, since he or she may accompany the statement with an explanation.
If the doctrine of self-publication is to be adopted, it should be limited to compelling fact situations, to avoid making a defamation case of every termination. In some cases, such as a charge of embezzlement or employee theft, there may be a strong compulsion to republish the charge without a real opportunity for explanation. In general, however, an employee is only obligated to state the true reason for his termination. Cf., Strouth v. Wilkison, 302 Minn. 297, 224 N.W.2d 511 (1974) (contractor who had withdrawn from construction business due to bankruptcy misrepresented the reason *885as ill health). It is apparent that the further from the truth the former employer’s allegation is, the less the employee is under a duty to “republish” it in a damaging form. In this case, a less damaging characterization than “gross insubordination” would have been fully justified.
If such a doctrine is adopted, the employer should enjoy the qualified privilege recognized by law, whether he communicates with other employers or only with the employee. Because of erroneous instructions in this case, it is doubtful that Equitable received the benefit of its qualified privilege to report the reasons for its discharge of employees.
The trial court erred in submitting the issue of qualified privilege to the jury:
Whether the occasion was a privileged one is a question to be determined by the court as an issue of law, unless of course the facts are in dispute, in which case the jury will be instructed as to the proper rules to apply.
Prosser and Keeton on the Law of Torts, § 115 (5th ed. 1984); see also, Restatement of Torts 2d § 619.
There was no dispute here as to the facts of the communication. The jury’s function, therefore, was only to determine whether the privilege had been abused, by a showing of actual malice. The trial court, however, instructed the jury that it could find malice either on the basis of “ill will and improper motives,” Stuempges v. Parke, Davis & Co., 297 N.W.2d 252, 257 (Minn.1980), or based on reckless disregard for the truth or falsity of the statement. Id. As the majority acknowledges, this was contrary to the holding in Stuempges that the second standard should not be used against non-media defendants:
Thus, [the NY. Times standard’s] focus on the defendant’s attitude toward the truth of what he had said rather than on his attitude toward the plaintiff is proper only when a media defendant is involved.
297 N.W.2d at 258 (emphasis in original).
Although the jury could still have found actual malice based on the first standard, by allowing the jury to focus on Equitable’s attitude towards the truth of its grounds for termination, the court permitted the jury to find defamation liability merely for wrongful termination. I do not agree that these were harmless errors.
For the reasons stated above, I would reverse the trial court on the defamation claim. Respondents have established no more than a breach of their employment contract, for which punitive damages is not available.