Outline of The Law of Libel
Outline of The Law of Libel
KD 1960.Z9O23
An
The
original of this
book
is in
restrictions in
text.
http://www.archive.org/details/cu31924022237733
AN OUTLINE
AN OUTLINE
OF
1896
BY
W. BLAKE ODGERS
OF THE MIDDLE TEMPLE, M.A., LL.D.,
Q.C.
AUTHOR OF A
DIGEST OF THE
LAW OF
ILonlron
MACMILLAN AND
:
CO, Limited
1897
A 11 rights reserved
CONTENTS
LIBEL
PAGE
What words
injured
are libellous
The reputation
...
. . .
.
of
some
person
must
have
.
been
.
12 15 15
Slander of Title
Trade-Libel
.
Libel on a Corporation
.22
.
.
17
24
.27
30
31
II
36
Such comments
38
They
42
Criticism
43
.
What
The
53 59
comments
.
comment
64
.
Can a
67
III
employed
74
77
.
82
86
94 95 95 102 105
Justification
IV
PRIVILEGE
Privileged Occasions
in general
107
109
.
When
I.
Absolute Peivilege
116
117
Parliamentary proceedings
Judicial proceedings
119
121
Acts of State,
etc.
CONTENTS
II.
vii
PAGE
Qualified Privilege
Duty and
Answers
Interest
to confidential inquiries
Communications volunteered
124
131
Communications made in
self-defence
Where both
parties
133
Etc.
continued
,
Law
Malice
of Libel
Amendment
Act,
1888
161
164
165 166
172 174
Damages
Costs
VI
CRIMINAL LAW
Distinction between a crime and a tort
176
1
To publish
a libel
is
78
111
LIBEL
I
of Legal
Education to deliver six lectures on the Law of Libel. It was originally proposed that I should include the law of slander, but I felt
that
it
would be impossible,
libel.
in a course of six
the law of
slander, as
a libel
;i
is
Or
in
libel
may
;
picture
its
it
You will remember the action which Mr. Monson brought against Madame Tussauds,
Limited, for
a
wax-work
B
figure,
which was
undoubtedly a good likeness of him, but which, acquired a defamatory meaning from the situation in which the defendants thought fit to place it. So, too, a caricature in Vanity Fair may be a libel, though it generally is not. This, then, is the chief distinction between libel
and slander
a libel
is
that a slander
is
merely spoken,
manently recorded.
There is another distinction, which I must mention in passing, though I shall deal with
more in detail in my sixth lecture. To write and publish a libel on a private individual is a crime as well as an actionable wrong but to slander a private individual is no crime
it
;
at
all.
A
will
third distinction
is
In
many
cases
words
if
be actionable
if
published, which
merely spoken.
written.
when
the words be merely spoken, the plaintiff has to prove a great deal more
But
he can recover damages. He must the words impute that he has committed a crime, or that he is sufferbefore
satisfy the jury that
LIBEL
ing from a contagious disorder, or that they disparage him in the way of his office, profession,
or
trade
or,
if
the
plaintiff be
woman
adultery or unchastity.
In
all
is
other cases,
called special
damage
that
is,
pecuniary loss as a direct consequence of the defendant's uttering the words. Now, in an action of libel it is never necessary to prove
special
damage.
Of
he will prove this fact to but it is not necessary increase his damages
cation of the
libel,
;
for a plaintiff in
libel to
show
can
this
recover
You
is
Why
is
That
law to
He
Whether he
.
will
succeed in discovering
tion
is
another matter
satisfac-
are
two
are
good reasons
libel
1.
distinction
between
and slander
slander
may
subsequent
publication
in
suggestion of malice.
The written or printed matter is permanent, and no one can tell into whose hands it may come. Every one now can read. The
2.
circulation of a newspaper
cially if it
is
enormous, espe-
and many people implicitly believe every word which they see in print merely because it is in print. And even a private letter may turn up in after-years, and reach persons for whom it was never intended, and so do incalculable mischief. Whereas a slander only reaches the immediate bystanders, who can observe the manner and note the tone of the speaker, who have heard the rest of the conversation which may greatly qualify his assertion, who probably are acquainted with the speaker, and know what weight is to be attached to any
charge
made by him
less
the publicity
is
thus
less
much
3.
in extent,
durable.
Another
LIBEL
does not.
are
But
doubt
that.
you abuse a man to his face by spoken words, as if you wrote him a letter expressing your sentiments with equal force. That is what I have ventured to call a bad
peace
reason.
But some of you look as if you were anxious to let me know that you are not convinced by what I have called the two good reasons, any more than by the bad one. " They may be very good reasons," you would like to say,
"
why
a plaintiff should
recover
smaller
amount
than in an action of
same words
but they do not appear to me to go to the root of the matter, or to be any satisfactory explanation for your statement that certain
words if written are actionable, whereas the The same words if merely spoken are not. considerations which you have been urging do not go to the cause of action, but only to the
amount of damage
spoken
words, he
done.
If the plaintiff's
been injured by the ought to be allowed to recover some damages, although it may be
reputation has in fact
he
to more."
confess,
a very sensible
no original idea of yours. argument which that eminent lawyer, Mr. Barnewall, addressed to the Court of Error in 1812 in the case of Thorley v. Lord Kerry, 4 Taunton, 355. But the Court replied that he was even then too late to raise the point. Sir James Mansfield, L.C.J.
it is
argument, and
It is exactly the
felt
and was almost persuaded to repudiate the distinction between written and spoken scandal
;
by
some of the greatest judges known to our law by Hale, C.B., in 1678, by Lord Holt, C.J., in 1694, and by Lord Hardwicke, C.J.,
:
And so the full Court decided that they could not in opposition to these old cases
in 1737. " venture to lay
down
at
this
day that no
action
can
be
if
written, for
maintained
And
is
if it
was too
late to disturb
this well-recognised
it
distinction in 1812,
to attempt to shake
fortiori
too late
it
in 1896.
It is clear
LIBEL
lie
for
i
many words which are not actionable if merely spoken. You may call a man a liar or a
coward or a
libertine
him down an
For after all there is a solid distinction between a spoken slander and a printed libel. Take, for instance, the case of Cook v. Ward, which was decided in 1830 (6 Bing. 409). There the plaintiff had himself told a party of friends a humorous story against himself, how he had once been mistaken for Jack Ketch at an inn in Bury St. Edmunds during the Thereupon the defendant meanly Assizes. published the story in his newspaper for all the world to read, adding some embellishments of his own and the plaintiff was in consequence pointed at and called " Jack Ketch" at a meeting of the burgesses of Colchester, in which ancient borough he served
;
He
it
sued the proprietor of the paper for libel, and was urged that he ought not to recover any
damages
on the
own
all
it
to
medium
v.
of a news-
paper."
And
see
Dolby
Neivnes, 3 Times
or
L.R. 393.
libel,
then,
may
be
anything
else.
It
may
and and
colours.
statue or a picture
may
be a
libel,
so
may any
other
mark
or sign exposed
and conveying a defamatory meaning. A chalk mark on a wall may be a libel on the plaintiff and because the wall cannot be conveniently brought into court, it has been solemnly decided that secondary evidence may be given of the words which were chalked on it. Burning a man in effigy, or fixing up a gallows or other' reproachful or
to public view
;
may
be a
libel
;
1598
Eep. 125,
Next, the words which are so written or printed or otherwise permanently recorded
DEFAMATORY "WORDS
:
must be defamatory
that
is,
of him.
do not
a better definition
about me which have made people think worse of me, then you have injured my reputation, and your words are libellous.
words
And
it
you a better
defi-
Is
he
of
tainly
man that Roman Catholic ? In these days, cernot. Many of the best and noblest
mankind have belonged to that ancient Church, and the fact that a few ultra-Promight think the worse of a man for Catholic shall make no differBut I doubt if a Dublin jury would ence. have taken this view of the matter in the last
testants
being a
Roman
century.
And
in
words
actionable.
stances
may
undoubtedly have been Then, again, surrounding circumSuppose a candialter the case.
would
him
at an election meeting,
;
he was a Protestant
10
newspaper to print and publish that he really was a Roman Catholic, would be a libel on
to saying that
not libellous in England to de" scribe the plaintiff in writing as " Man Friday "Man Friday," as Lord to some one else. Again,
it
is
Denman
man."
in the
They are not so fond as we are here. Lord William Take another instance. Nevill was for some time agent for an insurance company but he resigned his agency because he was not satisfied with the terms Thereupon the offered him by the company. secretary of the company sent out a circular to all thfe policyholders who had been introduced by the plaintiff, giving them the address of the company's new west-end office, and adding, what was not true, that the agency of Lord William Nevill had been closed by the directors. The plaintiff alleged that these words would be taken to mean that he had been dismissed by the directors from his employment as their agent for some reason discreditable to him, and that the words were therefore a libel
United
of black
men
in
America
DEFAMATORY WORDS
11
The jury found that the circular was and assessed the damages at 100, and Baron Pollock gave judgment for the plaintiff for that amount. The Court of Appeal was
on him.
a libel,
but there
was the verdict, and they did not like to upset it. The Master of the Rolls said, " It seems to me that the terms of that circular come
as nearly as possible to being incapable of a
defamatory meaning."
the jury to say whether
I
But
it
"
it
would be
for
was a
libel or not.
am
Fine Arts and General Insurance Company, Limited, 1895, 2 Q.B. at p. 168). But now the House of Lords has taken the bull by the horns, and declared that the circular was not a libel, and could not be construed into a libel, and that the plaintiff ought to have been nonsuited at the trial on the ground that he had no case to go to the jury (13 Times L.R. 97). So you see it is not always easy to say beforehand whether a particular paragraph or Unless the words circular is a libel or not. are clearly incapable of any defamatory meaning, the
case.
judge at the
trial will
He
law as
12
what libel is; he may, if he thinks fit, them his own opinion of the words before them and then he will leave it to the jury,
to
tell
;
as
men
of
common
sense, to say
whether the
words are a
libel or not.
And
the jury as a
words must have injured the reputation of some person, and that person must be the plaintiff. The plaintiff cannot sue for words which are defamatory of some one else. And an attack on a thing is not a libel on the individual who owns that
libellous, then, the
To be
thing.
refer
To
illustrate
this
distinction let
case,
me
which
Newspaper Com-
pany, Limited v. Bennett, 1894, A.C. 284). The circumstances which gave rise to the
action were curious.
sculling race
oarsmen,
Kemp and
Kemp.
On
the same afternoon an account of the race was published in two editions of the Evening
in
Market
Street,
DEFAMATORY WORDS
13
The greater number of the copies printed of both editions contained the correct statement that Kemp had won. But unforSydney.
tunately in
edition
as
later
in large type
the winner, and this announcement was followed by a paragraph headed " Details,"
from which
it
of the
Evening
nouncement was made in large type that M'Lean had won the race, and that in these papers there were no " Details " published from which the truth could be ascertained. The error in the incorrect copies arose from their being inadvertently struck off from a plate, which had been prepared before the race was rowed, to meet the possible case of M'Lean winning the race. Thereupon the Australian Star, a rival
this
"fearful
terrible
it
bungle made by the Evening News. triumphantly told a wondering public, who
14
had previously absorbed the correct result from the M'Lean had got home first. Then it doubled back in a following edition, and told a wondering world in effect that the preceding edition was an unmitigated perversion of the truth, and that both Kemp and M'Lean had come out on top."
Star, that
And
paper appeared
these words
" It is, to say the very least of it, rather rough on M'Lean, after having won the boat-race in Market Street, to be adjudged the loser everywhere else. According to the Market Street evening Ananias, both Kemp and M'Lean won the boat-race yesterday. Poor
little silly
Noozy
"
Ananias
"
necessarily
But the
Judicial
Committee of the Privy Council held that this was not so, and upheld the verdict of the jury For in this case it that there was no libel. was clear from the context that the comment
dealt solely with the production, not the man.
No newspaper
desire
perpetrate such a mistake as had been made in the plaintiff's paper the word
to
;
"
SLANDER OF TITLE
15
to the plaintiff, and, though in bad taste, did not in that context amount to a libel.
it
it
as a general
pro-
some thing, or impugn the plaintiff's title to some property, are not defamatory in the strict sense of that term. They may in
certain events give rise to an action, but not
words are governed by different rules from an action of the kind I am dealing with to-night an action for words defamatory of a person. You will find the law relating to those other actions under such headings as " Slander of Title" and "Trade-Libel." " Slander of Title " is the term usually, employed to include all statements, whether written or spoken, which impeach a man's Such title to any property, real or personal. words clearly do not affect his reputation. You would, I hope, think just as highly of me,
whether
attack a
any way
16
and caused him pecuniary loss in the Such statements may either disparage the quality of the goods which the
business
way
of his trade.
to be, or that goods which he represents they are an infringement of somebody's patent
them
words urging or warning people not to deal with the plaintiff, or not to pay him money due to him, or to bring actions against him any words, in short, which, though not personally defamatory, are
or copyright. So, too,
damage has
publication.
in fact resulted to
him from
a
their
You
will
find
very recent
Law
Reports of 1892.
I refer to
cliffe and Sons v. Evans, 1892, 2 Q.B. 524. There the defendant, who either knew or ought
to have
known
newspaper that the plaintiffs had ceased to carry on business as engineers and boilermakers, and that the firm of Ratcliffe and Sons had ceased to exist. This was no libel in the
ordinary sense of the word.
It
was rather to
LIBEL
Ratclifl'e
17
now
afford
competency.
and Sons therefore recovered damages. Then there is another whole category of words which are not really defamatory at all, which do not injure the personal reputation of anybody, or disparage the goods which he sells, or impeach his title to any property, and yet if they be uttered with deliberate malice by one who knows that their utterance will undoubtedly cause
such
loss to
if
But that is not an action of libel at all. It is what is called " an action on the case." Let me give you one or two instances to make my meaning clear. Suppose there are only two grocers in the town of Eatanswill, and one of them maliciously spreads a false report that
the children of the
other
grocer,
who
live
The
not injured,
18
his
title
to
them impugned.
damage and there-
But
it is
unhappy
father,
an action
lies.
You
judgment of Kelly,
C.B., in Riding v. Smith, 1 Ex. D. at p. 96. Take another instance in the case of Kelly v. Partington, which you will find in the fifth volume of Barnewall and Adolphus' Reports, the Solicitor-General, Sir John Campbell, contended that if praise produced special damage, such praise was actionable and Littledale, J. put him a case (p. 648) " Suppose a man had a relation of a penurious disposition, and a third person, knowing that it would injure him
:
which he induces the relation money, would that be actionable 1 " And Sir John Campbell answers " If the words were spoken falsely with intent to injure, they would be actionable." And clearly he was right. There is another reason why you must care-
libel
TRADE-LIBEL
is
19
and that
this
for
in
Hatchard
Mege and
others,
CAUTION
"DELMONICO CHAMPAGNE
" Messrs. Delbeck & Co., finding that wine stated to be Delmonico Champagne is being advertised for sale in Great Britain, hereby give notice that such wine cannot be the wine it is represented to be, as no champagne shipped under that name can be genuine Messrs. unless it has their names on their labels. Delbeck & Co. further give notice that if such wine be shipped from France they will take proceedings to stop such shipments, and such other proceedings in England as they may be advised."
Was there any this ? on the character of Mr. Hatchard, who was advertising Delmonico Champagne for
Now, which was
reflection
20
sale, or
was
it
use the
labels
?
name
his
if
Now
the words were merely a personal imputation upon Mr. Hatchard, the action died with him. But if they were an attack on his right to use a
label, that
Which
some of you think libel on Mr. Hatchard; others of you think that it was merely an attack on his labels. Well, you are both right. The Court decided that the first sentence in the paragraph, which asserted that the plaintiff's wine was not the wine which he represented it to be, was a personal charge against Mr. Hatchard of misrepresentation, and all claim for damages for those words died with him. The rest of the paragraph was a trade -libel, w$. and for those words the action could be continued by the executors. Lord Coleridge had "^ non -suited the executors at the trial on the ground that the action came to an end on the
I see
'
death of the original plaintiff; but the Divisional Court granted a new trial. The executors
accordingly went
on with the
action,
and
TRADE-LIBEL
21
was no malice on the part of the defendants they had merely published that advertisement to protect what they honestly believed to be
their rights.
in the fourth
trial
Law Eeports
page 118. For in all these cases of slander of title, trade-libel, and actions on the case for malicious injury, the plaintiff must prove (a) that the words are false (6) that they were published maliciously * (c) that they have caused him otherwise he can obtain special damage neither damages nor an injunction ( Wliite v. But in an ordinary J Mellin, 1895, A.C. 154). action of libel, when the words are defamatory
at
; ; ;
i
when the except that in one case words were published on a privileged occasion he must prove malice, as I shall explain Whether the words be privileged hereafter.
things
;
1 In the case of an action brought against a patentee for "threats" under Sec. 32 of the Patents, Designs, and Trade Marks Act, 1883 (46 and 47 Vict. c. 57), the plaintiff need not prove malice. But this, though often classed with actions for trade-libel, is really a new statutory action sui generis, with a
practice
and procedure of
its
own.
22
any
special
damage,
Nor
need he prove that they are false it is for the defendant to prove that they are true, if
he can.
And now
must
call
miscellaneous actions,
your attention to actions of libel proper, the gist of which, as I have already told you, is the The injury to the reputation of some person. other actions to which I have been referring, though akin to actions of libel, are not strictly
actions of libel at
all,
reputation of no person
injured.
You may
It
ask what
mean by
?
a person.
it is,
Is a corporait is not.
tion a person
is
Well,
and
is
Can a
injured
corpora?
tion sue,
its
reputation
That
A corporation
impugn
is
not allowed
abstract
any mere
his
who
can
or
honour
impute
sense, or
that
he
lacks
generosity,
common
him
good
taste.
If a season-ticket holder
for
abuses a railway
company
treating
CORPORATION
23
shabbily, probably
it
no action would
habitual,
lie.
But
might be
the
company
of
tional,
unpunctuality.
No
the worse of them morally for that, but it would tend to reduce the number of seasonticket holders.
It is
Corporation of Manchester 1 Q.B. 94, it was doubted whether a corporation could have any reputation apart from its property or trade. But a
the
v.
Mayor and
Williams, 1891,
which
or
business
v.
Limited
tion,
Limited, 1894,
Q.B. 133).
It
cannot
conduct of which a corporation such as murder physically cannot be guilty Omnibus Com(Metropolitan or corruption pany v. Haivhins, 1859, 4 H. & N. at p. Nor can it sue for any words which are a 90).
impute to
it
libel or
a slander, not on
it,
but on
its
unless,
indeed, special
members damage
24
And now
has
satisfied
libellous, that
let
the
is,
jury
are
permanent form by the defendant, and that they were such words as would injure the
or less
Still,
to succeed
an action of
libel,
something more. He must prove publication. He must prove a publication by the defendant
cannot recover damages for what might have happened, but did not
intention.
He
not actionable.
be subsequently pubif
And no
;
the
though it may wound his self-esteem. A man's reputation is the estimate in which
;|
others hold him, not the good opinion which he has of himself. It may be that the de-
all in
PUBLICATION
plaintiff,
25
no action lies. To be actionable, the defamatory words must be published by the defendant to some person other than the plaintiff. I will give you a few examples to illustrate this rule, that the plaintiff must show a publication to a third person.
.
The defendant wrote a letter to the plaintiff and sent it to him by post direct. But before he posted it a friend dropped in, and the defendant could not
letting his friend
resist
the opportunity of
a smart letter he
know what
had just written to the plaintiff. So he read That was clearly a publicaOr, suppose before posting
it
plaintiff,
he gave
it
again
is
a publication
by the defendant
of the
to his
own
clerk.
director
defendant
a letter,
plaintiff,
it
containing words
to a shorthand
by a type -writingclerk, who transcribed The type-written letter was then machine. signed by the managing director, press-copied by the office boy, placed in an envelope, and
sent direct to the plaintiff's
office.
This was
26
and to the
office
boy (Pullman
1
v.
Q.B. 524).
words on a
which he addressed to the plaintiff, and posted. The .words were read by the postman and by the plaintiff's housemaid who Perhaps the defendant took his letters in. never intended them to read what he wrote. Still this is undoubtedly a publication by him to them. He should not have used a postcard. In practice, whenever the defendant
uses a post-card, the plaintiff
is
not expected
tion
it
is
for
So
if
message by
clearly a publication
by
and gave it to B to deliver to the plaintiff. It was folded, but not sealed, so B could have read it if he B did not read it, but conhad thought fit. veyed it direct to the plaintiff. This is no
letter
publication.
PUBLICATION
27
the plaintiff,
enclosure.
picked
it
unopened to the plaintiff himself, who alone was libelled. No publication, for neither C
nor
it
down
Posting up a libellous placard and taking again before any one could read it, is
no pubbcation. If, however, it was exhibited long enough for any one to read it, then the defendant must satisfy the jury that no one
actually did read
it.
a publication to a man's
Is
you know, an old rule of law that a husband and his wife are one and this is still law for many purposes, in spite of all the Married Women's Property Acts. Thus, a husband is still liable to pay damages for a libel published by his wife, even though she published it without his knowledge or consent. But it does not follow that you may publish a libel on A to A's wife with impunity. That would never do. Mrs.
satisfy this rule
There
is,
as
A A
is
whom
Mr.
made.
would wish such a communication to be Hence it has been held that an action
28
lies
Wenman
v.
Ash, 13 C.B. 836). On the other hand, the law flings its protecting segis over all conver-
and communications between husband They may criticise the conduct of their friends and neighbours to their heart's content, so long as no one else shares their confidences. Such an interchange of opinion is not in law a publication at all Wennhah (
sations
and
wife.
v.
Morgan, 20 Q.B.D.
635).
confess
have thought it was a publication, but a privileged one. The Divisional Court, however, knows better, and it decided
should
that no action
lies
by
his
you just now that although the defendant may have desired and intended, and may have done all in his power, to procure a publication of defamatory words, still no action lies if they never reach the eyes of any
told
Suppose
it
is
proved
words should be published to anv person, and yet somehow they are
PUBLICATION
lie
?
29
Yes
if
such
his
by
conduct he has in fact injured the plaintiff's reputation, though inadvertently, he must pay The absence of any wicked intent damages. may diminish the amount of such damages,
but
it
you accidentally or unintentionally pubbsh to a third person words defamatory of me, I shall succeed in an action against you, unless you can satisfy the jury that you were guilty of no negligence, and were not at all to blame in the matter. Suppose the defendant wrote two letters, one to A and one to B, and the letter to A was an angry and libellous letter. The defendant meant to send A's letter direct to A,
action.
it
which he had addressed to B, and sent to B the Is this letter which he had intended for A.
a publication by the defendant to
of a libel
on
Clearly
it
is,
for it
published to B.
If I write a libel
and leave
it
about on the
it
my
study, so that
will
30
and a
it,
shown
into the
and he
absence,
that
libel
by me to that visitor. I am to blame for leaving such a document about. The sale of every written or printed copy of a libel is prima facie an actionable publiBut if the defendant is a newsvendor, cation.
who
in
way
of his
business,
and who
that
to have
known
any libellous matter, he will not be deemed to have published the libel which he
contain,
thus
innocently
disseminated
(Emmens
v.
and placed
down and
that
sent
it
to
him by
a messenger
if
messenger wrongfully broke open the envelope and read the libel, that would be no
publication
For
the
only publication
PUBLICATIOH
31
after
he wrote
in
down, and then gave it to a clerk to convey to the plaintiff. Suppose the wicked clerk on the road, finding that the envelope was not gummed down, took the letter out and read it, would that be a publication by the
it
would
be.
Of course the
more
to
to
blame
But
is
blame
think that
is
a publication
to his clerk.
own
acts
and those of
is
or
agents.
He
any
publication which
dependent act of some third person. But if the defendant had any share in the matter, or by any act or conduct contributed to cause
the publication, he will be
case suggested
liable.
Take the
32
up
in his
own
its
by the writer. had a case about three years ago, which illustrates the same principle. The circumstances were unusual. The defendant had made up his mind to murder A and then to
shoot himself;
he wrote a
libellous
paper,
which he hoped would be found on his dead body and published to all the world. He shot at A and wounded him, but was arrested before he could shoot himself. He was taken to the police-station and searched, and the paper was found on him by a sergeant of police, who
subsequently read
ately.
it
aloud at the
trial
to
prove that the crime was committed deliberIt was copied into many newspapers. Mathew, J., expressed the opinion that there was no publication by the defendant the sergeant was not his agent. In an American case the plaintiff, after receiving a libellous letter from the defendant, properly addressed to himself and properly sealed, sent for a friend of his and also for the
;
PUBLICATION
;
33
defendant
he then, in their
presence,
re-
peated the contents of the letter, and asked the defendant if he wrote that letter; the defendant, in the presence of the plaintiff's
admitted that he had written it. It was held that this was no publication by the defendant to the plaintiff's friend. It was
friend,
the plaintiff's
own
act.
And
this suggests to
me
a case of greater
is
difficulty.
a
is
the
office
of an.
The defendant
a
letter
considers
Ger-
man
The
envelope
properly fastened
in
German, so he and hands it to him, saying, " Tell me what this is about." Thereupon it becomes the duty of
himself; he sees that
it is
German
German
letter to
and
necessarily publishes to
employer a
libel
on himself.
lication
Can it be said that this is a pubby the defendant ? Can the plaintiff
D
34
Here
way
as to
make
it
English merchant.
plaintiff to injure
He
his
did, in fact,
compel the
it
own
reputation, and
On
the
other hand,
it is difficult
The
case
on
be
and when
it
it arises
I shall
happy
But
is
to argue
in the
Court of Appeal on
principle
either side.
in the
clear,
publication
person
of written
As soon
he has
established a
prima facie
case.
II
my
We
plaintiff,
and of
every citizen, to have his good name mainAnd this right is what is tained unimpaired.
(who love a tag of Latin) a jus in rem. They mean by this phrase, a right absolute, good against all the world, a right which no one may infringe withThe out rendering himself liable to an action. plaintiff in such an action need prove neither damage nor malice; for no man may discalled
by academical
professors
See post,
p. 110.
36
an actionable tort. But, on the other hand, the defendant has his rights too. He is an English citizen as much as the plaintiff. And one of his rights as an English citizen is to speak his mind fully and freely on all matters which concern
is
to do so without
more
the
State,
or
as
citizen
of the State.
And
if
in
will
go hard
he do
criticises
conflict of rights.
;
The
the
must not be
if
Which
is
their rights must necessarily clash ? The plaintiff must give way. For he it is that complains and calls in the aid of the law and he must show good ground for the inter-
His bringing an
acjielh
means that he
is
seeking compensatrixm~for an
"
injury done to
FAIR COMMENT
37
him by an
alleged wrongful
If the act of which he not wrongful but legitimate, he shall recover no damages. In other words, a
complains
fair comment on a matter of public interest is not an actionable libel at all. But, on the other hand, the law guards
even of
as little
a politician
lawful,
is
likely to injure
must be very
him
you can exercise your right without injuring him at all, then you must not injure him at all. Hence, if a defendant, when exercising his undoubted right to criticise and comment on the public acts of a public man, should overstep the line and unnecessarily impute dishonourable motives, or maliciously pry into his private concerns, the
injury as possible.
law is keen to resent this as a malicious libel masquerading in the guise of a fair comment.
is
zealously guarded
The right of criticism or fair comment, then, and the defendant will
;
38
were a
comment on
a matter of public
though
as
it
created
what
which
his
is
technically
known
privileged
occasion.
it
There
are
certain
occasions
on
becomes a man's duty to speak out mind fully and freely, and to state whatto
be the truth.
is
This
is so,
for instance, if
tell
he
a witness in
Or take
asked to
;
who
is
when
who
is
and
if
he states no
believes to be true, he
This
is
is
privi-
But quite a different rule prevails when the defence of "fair comment" is pleaded. The writer may honestly believe that every word which he has written is perfectly true
but that
is
quite immaterial,
if
deem
his
comments
unfair.
clearly laid
down
in the case of
Campbell
v.
ii
FAIR COMMENT
39
Spottiswoode,
1863,
B.
&
S.
769;
32
by the Eev. Dr. Campbell against the Saturday Review for an article written in what is known as " the Saturday's good old style." Dr. Campbell was the editor of a newspaper
L.J. Q.B. 185, an action brought
called the British Ensign, a religious paper,
in
sity of
Many
worthy people who subscribed to this paper took large numbers of extra copies for distribution, and Dr. Campbell not unnaturally pubhshed the names and addresses of the subscribers
who
But
in the
for 14th
headed
I will
You
;
will find
set out in
full in
the Reports
:
but
"Among the many blessings that we have to be thankful for in this life, that highly refreshing and invigorating newspaper, the British Ensign, ought not People don't value it so highly to be lost sight of. as they ought to do, nor are they yet fully aware of the inestimable advantages it has been the means of It has, according to Dr. conferring on mankind.
40
no man should be better qualirooted out infidelity from the land. It has It has struck a deadly blow at the Papacy. awakened the Churches, stirred up the backsliders, reproved vice in high places, comforted Christians in all parts of the world, and made the common enemy of mankind quake with apprehension, and all at the
Campbell (than
whom
It seems an exceedingly low charge of one penny excess of generosity to set so low a price on so invaluable an instrument ; but Dr. Campbell assures us that he does not look for his reward in the British Ensign office, or anywhere there adjacent. ... To One enjoy the Ensign one must be brought up to it. must be trained to browse on the evergreen pastures which stretch before us in that Elysium. Few have had the benefit of such an education. Fortunately, when he (Dr. Campbell) is in a dilemma, a Mr. Thompson, of Bath, is ever at hand to help him out. "The Doctor refers frequently to Mr. Thompson as his authority so frequently, that we must own to having had a transitory suspicion that Mr. T. was nothing more than another Mrs. Harris, and to believe, with Mrs. Gamp's acquaintance, that there never was no such person.' But as Mr. Thompson's
! .
'
name is down for 5000 copies of the Ensign, we must accept his identity as fully proved, and we hope the publisher of the Ensign is equally satisfied on the
point.
" To buy up the Ensign is represented as a Christian Subscribe to the paper, not because it is worth duty. anything, but from love to the heathen.
tried to
make
remained for a leader in the Nonconformist body to represent the weekly subscription as an act of religious duty."
go,'
but
it
FAIR COMMENT
41
Now
probably
this
all
is
all
it
is
untrue.
about Mr. Thompson is quite unfounded. I had the honour of knowing that worthy gentleman when I was a boy at Bath, and he was just the sort of person who would subscribe for a thousand copies of any paper of an evangelical type, if he thought that any good would result to the Chinese or any one else. v At the trial the jury was satisfied that the
strictures
and found a verdict for the plaintiff damages. But they added an express
their verdict to this effect
:
50
rider to
the article
The it to be well founded. Court held this finding to be immaterial. The words exceeded the limits of a fair comment, and whether the writer believed them or not
the imputations in did not matter, except in reduction of damages.
libellous,
and
the
It follows
from
fair.
And
I
it
in the case of
which
will deal
fair
42
comment on
libel at all.
no
There
reason
is
clearer
why
a fair
privileged occasion.
acts
men
is
the
of
the press.
Newspaper writers
is
:
Now
privilege
I
a right
whieh
I
possess because
am
or
because
in
hold a
particular
office,
stand
particular
some one
merely because he is a citizen of the State, is no privilege at all. So please do not confuse bona fide comment with privilege. It is really a very simple matter. The exercise of a right is not an
actionable wrong.
tort
;
Legitimate criticism
is
no
will
be
the
damnum
writer
sine injuria.
" It
is
only
of
when
fair
goes
beyond the
limits
comment that his criticism passes into the region of libel at all" (per Bowen, L.J., 20
Q.B.D. at
p.
283).
ir
CRITICISM
43
But the criticism must be criticism, and not defamation. True criticism differs from
defamation in three particulars
:
(1) Criticism deals only with such things as invite public attention, or call for public com-
ment.
his
It does
man
into
private
life,
pry into
his
domestic
concerns.
(2) Criticism never attacks the individual,
The
critic
He will
carefully
examine the production before him, and then honestly and fearlessly state his true opinion
of
it.
To you to
which was decided at the beginning It was an of the century, as early as 1808. action brought against Thomas Hood, the father of the poet, by a gentleman called Sir John Carr, who had written a book in 1805 called
a case
44
made
it
great
"A
and
tion
Sir
Ryghte Merrie and conceited Tour"; John brought his action. His declarathat was the name in those days for what
call a
we now
Statement of Claim is set out in full on page 355 of the first volume of CampIt enumerates the other books bell's Reports. which Sir John had written, the copyrights of which he had sold for " divers large sums of money," and then continues
had been respectively published expose him to, and to bring upon him, great contempt, laughter, and ridicule, falsely and maliciously published a certain false, scandalous, malicious, and defamatory libel, in the form of a book, of and concerning the said Sir John and of and concerning the said books, of which the said Sir John was the author as aforesaid, and which same libel contained therein a certain false, scandalous, malicious, and defamatory print, of and concerning the said Sir John, and of and concerning the said books of the said Sir John 1st and 2ndly above mentioned, therein called 'Frontispiece'; and entitled, 'The Knight (meaning the said Sir John) leaving Ireland with Eegret,' and containing and representing in the said print a certain false, scandalous, and malicious, defamatory, and
said books
in quarto, yet the defendant, intending to
"
Which
ridiculous representation of the said Sir John, in the form of a man of ludicrous and ridiculous appearance,
holding a pocket handkerchief to his face, and appearing to be weeping, and also containing therein a certain
ii
CRITICISM
45
false, malicious,
and ridiculous representation of a man and ridiculous appearance, following the said representation of the said Sir John, and loaded with, and bending under the weight of, three large books, one of them having the word Baltic printed on the back thereof, etc., and a pocket handkerchief
of ludicrous
' '
appearing to be held in one of the hands of the said representation of a man, and the corners thereof appearing to be held or tied together, as if containing something therein, with the printed word Wardrobe depending therefrom (thereby falsely, scandalously, and maliciously, meaning and intending to represent, for the purpose of rendering the said Sir John ridiculous, and exposing him to laughter, ridicule, and contempt, that one copy of the said first-mentioned book of the said Sir John, and two copies of the said book of the said Sir John secondly above mentipned, were so heavy as to cause a man to bend under the weight thereof, and that his the said Sir John's wardrobe was very small, and capable of being contained in a pocket handkerchief."
'
as
damage,
" That the said Sir John had been prevented and hindered from selling to Sir Eichard Philips, Knight, for a large sum of money, to wit, 600, the copyright of a certain book or work of him the said Sir John, of which the said Sir John was the author, containing an account of a tour of him the said Sir John through part of Scotland, which, but for the publishing of the said false, scandalous, malicious, and defamatory libels, he the said Sir John would, could, and might have sold to the said Sir Eichard Philips for the said last-mentioned sum of money, and the same remained wholly unsold
46
and undisposed
To
this
The
far before
Lord Ellenborough,
opinion that
if
Here the supposed libel has only attacked those works of which Sir John Carr is the avowed author and one writer in exposing the follies and errors of another may make use of ridicule, however poignant. Ridicule is often the fittest weapon that can be employed
for such a purpose. absque injuria.
If
damnum
the liberty of the press, if an action can be maintained on such principles ? Perhaps the plaintiff's Tour through Scotland is now unsaleable but is he to be indemnified by receiving a compensation in damages from the person who may have opened the eyes of the public to the bad taste and inanity of his compositions ? Who would have bought the works of Sir Robert Filmer after he had been refuted by Mr. Locke ? But shall it be said that he might have sustained an action for defamation against that great philosopher, who was labouring to enlighten and ameliorate mankind 1 really must not cramp observations upon authors and their works. They should be liable to criticism, to exposure, and even to
is
;
Where
We
ii
CRITICISM
47
if their compositions be ridiculous ; otherwise, the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Show me an attack on the moral character of this plaintiff, or any attack upon his character unconnected with his author-
ridicule,
ship, and I shall be as ready as any judge who ever sat here to protect him but I cannot hear of malice on account of turning his works into ridicule."
;
The counsel
the trial
proceeded.
Lord Ellenborough
"
Every man who publishes a book commits himself judgment of the public, and any one may comment upon his performance. If the commentator does not step aside from the work, or introduce fiction
to
the
and legitimate
48
does a great service to the public, who writes or useless publication such as ought never to have appeared. He checks the dissemination of bad taste and prevents people from wasting both their time and money upon trash. I speak of fair and candid criticism and this every one has a right to publish, although the author may suffer a loss from it. Such a loss the law does not consider as an injury because it is a loss which the party ought to sustain. It is, in short, the loss of fame and profits to which he was never entitled. Nothing can be conceived more threatening to the liberty of the press than the species of action before the Court. ought to resist an attempt against free and liberal criticism at the threshold."
The
We
"That
of
if
the writer of
the publication
complained
"
had not travelled out of the work he criticised for the purpose of slander, the action would not lie but if they could discover in it anything personally slanderous against the plaintiff, unconnected with the works he had given to the public, in that case he had a good cause of action, and they would award him damages accordingly."
The
fendant.
Again, take the two actions of Strauss Francis (4 F. & F. 939 and 1107). The Athenaeum published a critique on a novel written by the plaintiff, describing it as " the very worst attempt at a novel that has ever
v.
ii
CRITICISM
49
been perpetrated," and commenting severely on " its insanity, self-complacency, and vulgarity, its profanity, its indelicacy (to use
no stronger word), its display of bad Latin, bad French, bad German, and bad English," and its abuse of persons living and dead. After Erie, C.J., had summed up the case, the plaintiff withdrew a juror ;' which means that there was a drawn battle, and that each party paid his own costs. The Athenceum thereupon
published another
article, stating their
reason
which was, in fact, that they considered the plaintiff would have been unable to have paid them their costs, had they gained a verdict.
The plaintiff then brought another action, which was tried before Cockburn, C.J., and
the jury found a verdict for the defendants.
from these two victories of the press, jump to the conclusion that you can write anything you like about a book or a play with impunity. There are limits to the right of criticism, as Lord Ellenborough pointed out. If a critic, in reviewing a novel or a poem, were to make an attack on the private moral character of the writer, unconnected with his authorship, or to make a defamatory statenot,
50
n
{e.g.
ment
him
as
an author
that he was the writer of some other book or play notorious for its immoral tone), he could
fair
comnot
For
it is
false assertion,
;
it
is
an on
by
strict
proof of
truth.
If,
ment
is
reviewing,
will
whether
this
does
does
is
not
render
the
obviously an im-
A
or
slight
affect
the reader's
opinion
of
the book
for
play,
would
clearly
unfairness.
be no ground
veyed an entirely false impression as to the whole motive of the book or play would be
clearly unfair.
I will
Mr.
a play called
of which turned
of an elderly
ii
CRITICISM
till
51
she
5000, which she cannot pay. All this is a secret from her husband, whose duties as an M.P. compel him to spend his evenings in
the House of Commons. ing thus
play,
" the
The
of
foreigner, hav-
whiphand "
Lady
Felton,
and
is
finally to
There
the most squeamish moralist could object on the ground of its indelicacy. The defendant published a criticism on this play, commencing
thus
joint - production of Mr. and Merivale, gives us nothing but a hash-up of ingredients which have been used ad nauseam, until one rises in protestation against the loving, confiding,
Mrs.
Herman
fatuous husband with the naughty wife and her double existence, the good male genius, the limp aristocrat, and the villainous foreigner."
came on for trial before Mr. Justice The on 3rd and 4th March 1887. " naughty plaintiffs alleged that the word was here used in a slang sense and, taken in connection with "wife" and "fatuous husband," would convey to any one who read the review, but who had not seen the play, that
The
case
Field
52
was of low moral character, and discreditable to authors of good literary position and repute.
They
also
The defendant,
on the other hand, contended that the word " naughty " had not and could not have any such meaning, that if it had it was no libel on an author to say that he had written a play dealing with the subject of adultery and that if a critic in stating his honest opinion about a play used an ambiguous or infelicitous expression, conveying possibly to some an erroneous impression of the play criticised, such a slip of the pen would not make the passage libellous. It was admitted that the defendant bore the plaintiffs no illwill, having previously inserted very favourable critiques of their works. There was no special damage. The jury found a verdict for the plaintiffs for one shilling damages, but the judge refused to deprive the plaintiffs of their
right to costs.
Court of
The verdict was upheld in the Appeal (Merivale and Wife v. Carsee that the right to
is
Hence you
on
all
comment
restricted
FAIR COMMENT
limits.
53
We may
sum them
up,
liability,
(a)
fairly relevant to
terest.
They must be the expression of an opinion, and not the assertion of a fact. (c) They must not exceed the limits of a fair comment. (d) They must not be published maliciously.
(b)
I will deal
ately.
(a) First,
interest
what are the matters of public on which every one has a right to
?
comment
This
is
and not the jury (per.Lopes, L.J., 1894, 1 But as a rule there is not Q.B. at p. 143). much difficulty about it. The public conduct
of every public
public concern
;
man
so
is
is
clearly a matter of
the conduct
of every of every
a perfect
public institution.
Government ap-
54
conduct of all public officials, all proposals for reforming our laws or reducing
tries,
taxation,
justice in
national importance
on all matters of local public interest, e.g. all county or municipal affairs, the sanitary condition of any populous district, .all measures adopted or proposed for adoption by the town
council,
vestry,
school
board,
or
sanitary
of
and expenditure
the conduct of
book, or
play,
exhibits
picture,
or
performs a
;
invites
public
if fair
criticism
thereon
is
and
such criticism,
and honest,
therefore
however severe its terms may be. So with any tradesman's advertisement, or the prospectus of a public company, or any
no
libel,
other appeal to the public to purchase goods or shares. But the critic or article -writer
his
n
private
life.
FAIR COMMENT
55
He
the private
affairs of
famous or notorious. It may be that the public would be interested in such details but it does not follow that the matter is one of general public interest within the meaning of the rule. A newspaper, in particular, which
is
newspaper
It is
circulates.
line, howbetween matters which the law deems of public interest, and those which it does not. Take the case of Kelly v. Tinling, L.E. 1
ever,
permission, published a correspondence which had passed between the plaintiff, who was the incumbent of St. George's Church, Liverpool, and one of his churchwardens. One of the letters written by the churchwarden contained
"I have observed with pain the church turned into a bookseller's shop during divine service by your errand-boy selling books under the pulpit, and money being jingled about in giving change, to the annoyance
56
n
I
of
Nor can
omit to allude
by turning a portion of it into a cooking apartment, and endangering the sacred edifice, which I am bound to protect. ... As you make use of St. George's Church for a number of purposes for which it was never intended, it becomes my painful duty to request that these improprieties
to the desecration of the church
may
cease."
was proved at the trial that the plaintiff's servant had been in the habit of selling hymnbooks and receiving the money for them in the church, though the plaintiff had put a stop to this as soon as he heard of it. It was also proved that the plaintiff had had a potato, if not also a chop, cooked in the vestry between two services, because there was not time for him to go home to dinner. The learned judge referred the jury to some observations which he had made on the preceding day in another action brought by the same plaintiff against the Liverpool Mail for some other libels (for which he recovered one farthing damages
It
Kelly
v.
Sherlock, L.E.
Q.B.
:
686,
689).
"The first question you have to decide is whether the publications were libels according to the law's definition of a libel. Anything which is calculated to
libel.
bring a person into ridicule, hatred, or contempt is a Although that is true as a general rule, yet it
ii
FAIR COMMENT
57
also true and happy for us it is that it is true that every man has a right to discuss matters of public interest. A clergyman with his flock, an admiral with his fleet, a general with his army, and a judge with his jury we are all of us the subjects for public discussion. So also is it matter of public interest, the dispute between the plaintiff and his organist, and the way in which the church is used they are all public matters, and may be publicly discussed. And, provided a man, whether in a newspaper or not, publishes a comment on a matter of public interest, fair in tone and temperate, although he may express opinions that you may not agree with, that is not a subject for an action for libel because whoever fills a public position renders himself again happily open to public discussion, and if any part of his public acts is wrong he must accept the attack as a necessary, though unpleasant, circumstance attaching to his position. In this country everything, either by speech or writing, may be discussed for the benefit of the public. No
is
doubt, therefore, the defendant was at liberty to disIf cuss the opinions or proceedings of the plaintiff. he has done it fairly, temperately, and calmly, then he is not the fit subject for an action for libel."
de-
One word
of caution as to comments on
judicial proceedings.
have already told you, the administration of justice in our law Every courts is a matter of public interest.
I
As
the subject of
comment
58
trial is over,
No
observations are
permitted during
of the jury,
its progress, lest the minds and indeed of the judge also,
Any comment
although the
pending action
able
is
by
fine
or imprisonment,
article
respect
be written temperately, and with due to the Court, and be in all other
might properly be
ended.
is
And
The
after
over, there
still
bound
to exercise a
fair,
honest, and
of others or impute to
them dishonourable or criminal conduct. Thus, it is not a fair comment on a criminal trial to
suggest that the prisoner, though acquitted,
was
ticular witness
committed perjury.
And
the
report
is
the record,
densed or abridged form, of something that actually took place. A comment is the judg-
ii
FAIR
COMMENT
59
who
opinion about
of others.
has considered the matter, and formed an it which he states for the benefit
separate things, and should be kept apart in the paper. As Lord Campbell once remarked,
any comments are made, they should not be made as part of the report. The report should be confined to what takes place in
Court, and the two things, report and com-
" If
ment, should be kept separate." This distinction runs through the whole law on the subject. Different legal principles apply to the two kinds of composition for whereas fair reports are (as a rule) privileged,
;
fair
comments,
on matters of public interest, all. So again, where a trial more than one day, daily reports of the
if
proceedings may be published, but no comments may be made on the case till the trial * is at an end. (b) Next, the words complained of must be the expression of an opinion and not the assertion of a fact. If you state as a fact a official or a candidate for that Government Parliament did a certain act which he never did, then the fact that if he had done it, such conduct would have been a matter of' public
60
You must prove not help you. A newsyour words true, or pay damages. paper actually has no right to publish lies,
interest, will
even of a public
man
Comment on
well-
known
matters of fact upon which you propose to comment. Such assertions are not comments
They are not comments at all. This distinction was very clearly pointed out by the Irish Exchequer Division in the
upon anything.
case of Lefroy v. Burnside, 4 L.E.Ir. at 565.
p.
"That a fair and bona fide comment on a matter of public interest is an excuse of what would otherwise The very be a defamatory publication is admitted.
statement, however, of this rule assumes the matters of fact commented upon to be somehow or other ascertained. It does not mean that a man may invent facts,
and comment on the facts so be a fair and bona fide manner the facts were true. If upon which the publication is
. .
not
exist,
invented in what would on the supposition that the facts as a comment sought to be excused do the foundation of the plea fails."
An
187.
illustration
comes
v.
newspaper
Hie
Natal
II
FAIR
iu
COMMENT
61
Wit,t'.K.s,
the
official
British
Resident Commissioner
assaulted
Zululand.
that
violently
a Zulu
chief;
he
had
set
and ahuse other Zulu chieftains, etc. They vouched for the truth of these stories, declaring that, though some doubt had been thrown on them, they would prove to be true on investigation. Then they proceeded, on
the assumption that the charges were true, to
comment on
offensive
in
Xatal,
proved
tion.
that
charges
against
the
re-
spondent were
absolutely
without
founda-
The appellant made no attempt to support them by evidence. The jury found
a verdict for the plaintiff for 500 damages,
and a motion
for a
new
trial
was refused by
On
appeal to
this country, the Judicial Committee of the Privy Council held that such defamatory charges were in no way privileged, that they were not fair comment on anything, that the damages were not excessive, and that no
62
n
trial.
new
Lord
be-
stated
the
distinction
tween comment or criticism and allegations of fact in very clear and forcible language
:
" Comment on well-known or admitted facts is a very different thing from the assertion of unsubstanis no doubt that the lawfully be made the subject of fair comment or criticism not only by the press, but by all members of the public. But the distinction cannot be too clearly borne in mind between
comment.
There
man may
comment
or criticism
and allegations of
fact,
such as
that disgraceful acts have been committed, or discreditable language used. It is one thing to comment upon
or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of particular acts of
misconduct."
But sometimes a phrase may appear to when you take it by itself, and yet you will find, if you study its context, that it is really only a comment on some
assert a fact
If I
say
you
are
" not
straightforward,"
sim-
pliciter,
without more, that would be the assertion of a fact. But if I say that A asked
"
Yes
" to it
that the next day you were asked the same question by B, and told him " No " and then
;
ii
FAIR COMMENT
63
is is
not straightfora
ward, that
comment on
and if the preceding facts he correctly stated I need not prove my comment true, if facts and comment all relate to
the preceding facts
a
matter of public
interest.
In other words,
if I state
which it is based, my inference will be treated as an allegation of fact. But if I set out the facts correctly, and then give my inference, making it clear that it is my inference from those facts, it will, as a rule, be deemed a comment. And there is common sense in this. For if I set out the facts on which
my
opinion
is
based,
for themselves
whether
founded or not. They may see no harm at all in the conduct which I condemn. But if
rectly,
do not state the facts, or state them incorthen I do not enable you to form your own opinion on the matter. If I make the
I
AB
is
a swindler," or
is not an inference from anything or a comment on anything. It is just an allegation of fact which I must prove true, or for which I must establish a privilege, if I am to escape paying damages to A B.
64
limits
Then the words must not exceed the As soon as the of a fair comment.
it
appears that
it is for
him and not the jury to decide this) that the matter commented on is one of public interest, the more difficult question arises, " Is the com-
ment on
fair
it
a fair one
"
This
is
a question
so clearly
comment
is
and legitimate that there can be no quesit. How are they to answer it ? There is not to be found anywhere in our law-books any definition of a fair comment though there are a great many cases reported in which the jury has found a particular criticism unfair, and their finding has been approved by the Court. Possibly learned judges have thought it best not to formulate any definition, but to leave the jury to decide " Nothing is each case on its own merits. more important," as Mr. Justice Crompton said in the case I dwelt on at the beginning of this lecture [Campbell v. Spottisivoode, 3 Best and Smith, at p. 778), " than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men or
tion about
"
CRITICISM
65
comment
writer
is
on the subject-matter
discussed.
The
what the
;
limits are
overstepped
to lay
probably because
impossible
down any general rule. But later judges have thrown much light on the matter. I spoke just now about the Well, the judgplay called The Whiphand.
ments delivered in that case in the Court of Appeal are most valuable. You should read them most carefully. You will find there all the law there is on the question What are
(Merivale
and Wife
state it
makes no false assertion of fact about either, but honestly states his genuine opinion as to the book or play on which his criticism is invited, then it is very difficult to say when It the bounds of fair criticism are exceeded. is clearly not necessary that the jury should
66
he
is
entitled to publish
own
opinion,
sound others
with
may
The jury
are not
on reasonable grounds. So, too, the fact that his words are strong or even intemperate is not enough to make his Lord Esher, M.R., states the criticism unfair.
sufficient care or
law thus on
"
p.
280
prejudice,
Every latitude must and then an ordinary judgment must would have made such
or
be given to opinion and to ordinary set of men with say whether any fair man
a
comment.
geration,
even
gross
exaggeration,
the comment unfair. opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within The question which the jury the prescribed limit. must consider is this Would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said."
make
book or the
by the
de-
fair
man
could posit,
then and then only are they to find for the I think this decision is eminently plaintiff. satisfactory, both as protecting authors from
ii
FAIR COMMENT
deliberate
67
all
same
is
time
to
affording
every
reasonable
protection
that liberty
essential to
the
the press.
(d) Lastly, the defendant
acted maliciously in the matter. The word " fair," in the phrase " a fair comment," refers
to the language
mind
a
of the writer.
fair
maliciously.
instance, that
and B are both suitors for the hand of the same young lady. A writes a book or a play which is severely criticised in the Times. The criticism, though severe, is nevertheless a fair
comment on the play. It honestly expresses what the critic on the staff of the Times really
B reads this, and thought of the production. is delighted, and he sends a copy of that issue of the Times to the mother of the young lady,
hoping and intending thus to injure his rival. Will an action lie for this malicious publication of what all the time is a fair comment ? I think it will, and there is some ground for
that opinion in the dictum of Lord Esher,
M.K., in Merivale
v.
Carson, 20 Q.B.D. at
p.
68
n
clear.
far
from
be a perfectly legitimate weapon to use in fair fight, but it does not follow that you are entitled to stab your foe in the back
dagger
may
with
it.
But
in
ment
in
any action of
libel, if
he
satisfies the
interest,
not
some matter of
fact.
Ill
Those of you who attended my two former some idea now as to what
is. You know, at all events, that a fair comment on a matter of public interest is not a libel so we will exclude such comments from our consideration in future. So, too, we
a libel
will
all
actions of
slander of
or trade-libel, or actions on
our
i.e.
attention
to
to
written
libels
defamatory of some person. Now I told you that words were defamatory when they injured some one's reputation, when they made people think worse of him or, if you prefer a longer phrase, when their obvious tendency
;
70
in
is
him
tempt.
But
tion,
People will
the defend-
or if their words are unintelligible defamatory meaning is so hidden that no It is not enough third person can detect it.
words and
third person
feels
their hidden
sting.
Some
you when we were dealing with publication, a man's reputation is the esteem in which others hold him, not the good opinion which
he has of himself.
And
lies.
be injured, no action
Now
desires
it
who
he
to injure
the
reputation of another
all
means.
his
He
prefers to
wrap
their
it
up, to drop a
draw
own
conclusions.
libeller,
This requires
also, as a rule,
less
pluck in the
and
does more
harm
to the reputa-
For those to
whom
I"
CONSTRUCTION
;
71
construction on these dark hints and often indeed a blacker one than the libeller intended to convey.
in the least.
is
The
im-
of the writer
quite
He
cannot be
flirtation
;
heard to say
"
Oh
gest that there was something like a going on between Mr. A and Mrs. B
never
words would be understood as insinuating anything worse." If that were true and it generally in such cases is not then the defendant is to blame for expressing
dreamt that
my
He should
As
it
is,
have stated
his
meaning
clearly.
he has by his ambiguous hints injured the reputation of two innocent persons, and he
test
what extent
And
this
depends on how
not on
how
to understand them.
A man
who
says or
plain
if
his
72
in
Put
it
Sup-
understood what
he meant
may
for
the
defendant
praised a good
man
ironically,
meaning
his
words to be taken in the contrary sense, his intention would be immaterial the right of action would wholly depend on how his words were understood. So, if you called me an ugly name in French or Welsh, and no one present understood the language which you used, then I cannot sue you, though I understood you perfectly because my reputation is not injured. Or suppose pardon me that you thought you knew French or Welsh, but did not, and that you called me by a name that you thought was harmless or even complimentary, whereas really that word, as you pronounced it, meant that I had committed some atrocious crime and was so understood by those who listened to your remarks then you are liable to an action, because your words have in fact injured my reputation,
; ;
in
CONSTRUCTION
this
73
was not what you intended. And you say one thing and mean another, the law will seize on what you say, and disregard what you meant. Grown-up men and women must learn to express themthough
generally,
if
selves properly.
you make jokes before serious-minded persons. If you libel a man in jest, and your readers take you in earnest, you jest at your peril. This was what Mr. Hayes discovered in 1831,
in the Irish Court of Exchequer.
He
stated
de-
publicly
that Mr.
yard and had been fined for the offence. And when Mr. Donoghue brought his action, Hayes A very pleaded that he meant this as a joke.
he,
!
could_not have
think
But
it
did not
And
Baron said
"
The
principle
clear
that a
be so spoken that
it
is
meant, no injury
lie."
74
in
but language was harmless if his readers reasonably attached to it an injurious meaning, he is liable for the ambigu-
mind
In
all
is
what
meaning would the words convey to ordinary Englishmen who read them without any previous knowledge of the circumstances to which they relate. And this of course is preeminently a question for the jury,
twelve ordinary Englishmen.
who
are
Many
tiff
prima facie
meaningless.
at all events,
are
innocent or
There
is
the Court
a merchant, "
say of hath eaten a spider," was " actionable with a proper averment of what
He
the meaning
year
Car.
is."
1636 (Franklyn
I.).
Butler, Pasch.
11
But the report does not vouchsafe any explanation of the meaning of this extraordinary phrase and I am unfortunately not
;
days
of Charles
I.
to be able to
ni
CONSTRUCTION
75
About the same time it was decided that to say to an attorney, " Thou art a daffodowndilly," was actionable, because in
the matter.
those days that poetic phrase was understood
why,
sides,
know not
to
and had betrayed to one client the secrets of the other. But in more recent days, when Mrs. Eawlings brought an action for the words " You are a bunter," she was non-suited,
the learned judge (Willes, J.) holding that
that word had no meaning at
all,
and could
ordinary
not
tiff
therefore
;
be
defamatory
in
parlance
and he refused to allow the plainto be asked what the word " bunter
meant.
Again, there
may
imputation
is
clear,
but
not obvious to
To enable a particome forward and bring an action, not only must the charge be definite, but it must be clear at whom it is aimed. This must appear from the words themselves.
the words relate.
cular plaintiff to
whom
No
J.,
plaintiff
can sue on
charge which
is
levied
against mankind
in general.
As Willes, of Eastwood v.
Holmes
F.
&
F. at p.
349), "If a
man
76
in
wrote that
cular
lawyer could, sue him, unless there is something to point to the particular in-
Or take the instance suggested by Lord Denman in Solomon v. Lawson (8 Q.B. 837), " Suppose the words to be 'a murder was committed in A's house last night,' no introduction can warrant the innuendo meaning that B committed the said murder nor would it be helped by the finding of the jury for the plaintiff. For the Court must see that the words do not and cannot mean it, and would arrest the judgment
dividual."
' '
accordingly."
In short, words will not be libellous unless they convey some definite imputation on some
and that person must be the action. If no one can tell what the words mean, there is no libel for no man's reputation has suffered. If no one can tell to whom the words refer, there is no
definite person,
plaintiff in the
;
libel
on the plaintiff; for his reputation at any rate has not suffered. Whenever it is not obvious from the words
is
themselves
what
who is the person referred to or the imputation cast upon him, the
difficulty
may
in
INNUENDO
his
77
pleading
an
averment, which
is
plaintiff)
was a stockbroker, and that " the defendant falsely and maliciously wrote and published of him the words He (meaning the plaintiff) is a lame duck,' meaning thereby that the plaintiff had not fulfilled his contracts in respect of certain stocks and shares which he had bought in the course of his business as
'
a stockbroker." So, too, in the case of the " daffodowndilly," the pleading in fact ran, " Thou (meaning thereby the plaintiff) art a
'
daffodowndilly,'
plaintiff
though now almost as incomprehensible as the word which it sought to explain, was in those So, days a term generally known to the law. had there been a proper averment in the pleading to explain what meaning the word "bunter" conveyed in the year 1858, Mrs. Rawlings might have won her action for with an innuendo evidence of the meaning of that strange word would have been admissible. Hence, whenever the words are prima facie harmless or prima facie meaningless, if you
;
78
in
in
But the innuendo must be a reasonable it must be in accordance with the facts, and not an invention of an imaginative attorney's clerk. The innuendo can only be used to evolve the true though latent meanone
;
make
clear to
the
mind. found an instance of a very wild innuendo in the law reports of Massachusetts. The words were " I was speaking to a lady about Mrs. York's case " and the " innuendo was meaning thereby that the plaintiff (Mrs. York) had been guilty of adultery " That innuendo was disallowed. It is always for the judge to determine whether the words used are capable of the meaning which is alleged in the innuendo it is for the jury to determine whether the words did in fact convey that meaning to those who read them. If the judge thinks the words are incapable of that meaning he will stop the case; as was done in Mulligan v. Cole, 1875, In that case the plaintiff L.E. 10 Q.B. 549.
defendant's
I
far-fetched.
in
INNUENDO
79
was a certificated art master, and had been master at the Walsall Science and Art Institute. His engagement there ceased in June
1874, and he then started, and became master
another school which was called " The Walsall Government School of Art," and
of,
which he opened in August 1874. In September the following advertisement appeared in the Walsall Observer, signed by the defendants, who were respectively the chairman, treasurer, and secretary of the Institute. Wajsall Science and Art Institute. The
'"
he
is
on
its behalf."
The declaration
pretended to be authorised to receive subscripAt the tions on behalf of the said institute."
.
trial
innuendo.
Bench held that the non-suit was right that the advertisement was not capable of any
defamatory meaning.
This case
is
very similar
80
in
first
my
lecture
Company, Limited),
After
all,
"the office of an innuendo" is nowhere more clearly or better defined than in the old case of James v. Rutlech (4 Eep.
17, o), decided so long
ago as 1599.
is
I like
to quote to
no new system recently inventedthat it is not a Code Napoleon, for instance, imposed by an emperor on an unwilling people but a thing qf our own, a home product, which has grown and developed with the English race. Able judges and learned lawyers have done their best to improve it and strengthen it as the years
to
cases occasionally,
rolled
by.
Parliament,
in various
'prentice
hand
and no doubt
law.
all
too,
has
tried
its
wellstill
meant attempts
it is
to
amend our
But
old tree
sprung
from the same root. And that is why it constantly happens that for a clear exposition of the meaning of some of our best-known rules of law, we must turn back to the days of Queen Elizabeth and James I., and to those
111
CONSTRUCTION
81
that
:
much
talk about
is,
precision, in
pleading.
of a legal
maxim which
holds good Id certum est quod certum reddi potest. Still, if the defendant's meaning could not be discovered for certain from his words and acts, or from the surrounding cir-
cumstances, certum reddi non potest, it was not capable of being made certain at all. If
the words are in their essence loose and vague, no innuendo can make them definite. If the words refer to nobody in particular, the cleverest innuendo will not enable any one to
And
this is
how
the Court
"An innuendo cannot make a person certain who was uncertain before. For it would be inconvenient that actions should be maintained by imagination of an intent which doth not appear by the words upon which the action is grounded, but is altogether uncertain and subject to deceivable conjecture," and " as an innuendo cannot make the person certain which was uncertain before, so an innuendo cannot alter the matter or sense of the words themselves."
. .
.
82
Hi
Let us deal a little more in detail with certainty as to each of these two heads of the imcertainty and the person defamed,
:
putation.
(i.)
need not be named. It is sufficient if the reader can ascertain who he is. He may be referred to by a nickname, or
The person
merely his
initials given.
:
As Lord Hardwicke
libellers of
said in 1742
"All the
the king-
put
in-
name
can sue,
those
are
libel
the
person meant.
state
And
he can
his friends
and acquaintances
they read them.
the words
when
be
man
known women
clear
yarn before,"
may
really
means
that a particular
woman
has been
v.
Wood, 38
Sol. J.
in
83
of
one man," etc. And the plaintiff satisfied the jury that he was the " one man " referred to
by calling witnesses who had read the placard, and had at once concluded that it referred to
him.
first
sight appear
A may
man
is
illegiti-
mate
words
reflect
impartially on some
or class,
and there is nothing to show which one is meant, no action But if the words reflect on each and lies. every member of a certain body or class, then
one of a certain
each or
all
number
can
sue.
Thus,
if
man
libels
A has only one brother or only one partner, that brother but if the words were, or partner can sue
;
"
One
of A's brothers
is
perjured,"
and
has several brothers, no one of them can sue, unless there are some special circum-
84
in
stances
referred.
So
"
if
man
can sue
of the
for it shall
name
of Brown.
had
son, "
said,
to a
hus-
band."
But
if
One
;
not apparent
who
is
the person
slandered.
So where a party in a cause said to three just given evidence against him, " One of you three is perjured," it was held
But had he
said, "
Each
three
you
is
You
are
all
would have
lain,
one
by each of them.
Still
may
member
of that class.
Thus, where
some
of
plaintiffs,
who were
in
85
words iu their
The defendant
is
blame
If
for expressing
himself so ambigu-
ously.
jury that
that
many
I do not see would be any defence for the defendant to try and show that many other persons reason-
86
in
libelled to
be the
first
Q.C. to sue.
(ii.)
who
them. All obscurity will disappear under the severe scrutiny which the words
will receive in a court of law. It matters not
whether the defamatory words be in English, or in any other language that is understood in England, whether they be spelt correctly or incorrectly, whether the phrase be grammatical or not, whether slang terms be employed, or
the most refined
obscure, it " on dit "
and elegant diction. The insinuation may be indirect, and the illusion
may
;
be put as a question or as an
the
language
figurative, or allegorical, it
may may
;
be ironical, be disguised
still,
in a riddle or in hieroglyphics
if
there
all,
the Court
If a
man
be compared to
"Judas," or "Ananias," or to "the impenitent thief," every one will understand such
ni
87
allusions as those.
some who were her warmest friends stated that they had realised the fable of the Frozen Snake " and the Court held that no innuendo was necessary to explain the allusion. And
;
"
when the Morning Post concluded an attack on the conduct of Mr. "Woodgate, who had
been
fairly
solicitor to
" Messrs.
Lord Egmont, with the words, Quirk, Gammon, and Snap were
if
equalled,
not outdone
"
a copy of
Ten Thousand a Year was put in at the trial and taken as read. I myself was once paid to read The Strange Story of Dr. Jekyll and Mr Hyde ; some one had compared a virtuous plaintiff to Mr. Hyde; and a copy of Mr. Stevenson's book accompanied my instructions. Counsel, of course, never have any time to
read novels
In
all
these cases
it
is
simply a question
for the jury to decide what meaning the words convey to readers of ordinary intelligence. And they should always read the whole
letter or
it
is
libel.
They should
look
at
the
context.
If in
88
in
tiff's credit,
bane
"
and
;
be taken together
they
may
be found to
whole,
proper
weight to every part. Sometimes the sting of a libel will be found in its tail, sometimes
in a heading or catchword prefixed to a paragraph otherwise unobjectionable. Mr. Boydell recovered judgment in 1838 for a paragraph which apparently gave an accurate account of something that had occurred in
honest lawyer."
It
meant ironically, and they clearly referred to Mr. Boydell. So, too, where a correct report of a certain trial was published in the Observer with a heading, " Shameful conduct of an attorney," the Court held that these words were a libel, though all that followed was privileged (Lewis v. Clement, 3 B. & Aid. 702). So a word at the end of a paragraph may alter its whole
meaning.
Take, for instance, the paragraph which appeared in the True Sun newspaper
in
CERTAINTY
89
" Riot at Preston.From the Liverpool Courier. appears that Hunt pointed out Councillor Seager to the mob, and said, There is one of the black sheep.' The mob fell upon him and murdered him. In the affray Hunt had his nose cut off. The coroner's inquest have brought in a verdict of wilful murder against Hunt, who is committed to gaol. Fudge
It
'
word " fudge " in the Liverpool Journal (not the Conner) four days previously. Without that word it was clearly a libel, and it was certainly untrue. Nothing of the kind ever happened, and Mr. Hunt, " the Eadical,"
brought his action.
At the
trial
the discus-
Was
it
preposterous charge,
as
tended
it
If so, there
was no
Or was
merely
in order that
future
day
as
intended to discredit the story ? The jury were puzzled, and in the end they awarded
the plaintiff one farthing damages, a verdict
which
245).
in
those
days
carried
with
it
one
farthing and no
more
for costs (6
C.
&
P.
90
in
a defamatory imputation be in
it
fact
how
was
expressed.
It
may
be hinted or
implied, suggested
adjective, hidden
ironical phrase.
by
a question or a mere'
If the
and obvious
facts
further question
may
arise
Were
there any
known both
latter to
This
and
and
Counties
5 C.P.D.
Bank
v.
1880,
514; 7 App. Cas. 741. Here is an instance in which a defamatory meaning lay hidden under words which seemed perfectly harmless. The defendant said to an " upholsterer You are a soldier I saw you in your red coat doing duty." These words do not appear to be actionable till you learn that it was then a common practice for trades:
men
to
sham
in
CERTAINTY
91
The words were therefore held actionable as damaging the credit of a trader {Avne v. Johnson, 10 Mod. 111).
arrested for debt.
Again, words
in a document, or
may
acquire a defamatory
in which they stand from the position in which they appear. I am informed that the wax model of Mr. Monson, which was exhibited by the successors of Madame Tussaud, was an excellent likeness of him. But they thought
fit
to
place
it
at
the
threshold
of
the
"
Chamber
of Horrors,"
and
in
close
prox-
and
1894,
Q.B. 671).
(
In another case
Williams
v.
Smith, 22
Q.B.D. 134) the defendants published, what was perfectly true, that judgment had been recovered against the plaintiff in the County
Court for 27
Is.
was the
been
not say
satisfied.
it
On
had not
92
in
Trade Gazette, by the side of " Bankruptcy Notices," and items as to "Bills of Sale," and it was held that the jury might properly find that the words so published implied that the plaintiff was unable to satisfy the said judgment, or to pay his just
it
debts.
So Miss Ella Russell recovered 100 damages because her name was placed in the middle of the programme of a concert, whereas it should have come first, and the defendant had undertaken to place it first. Evidence was called at the trial to show that in the musical world the order in which the names appeared conveyed a particular meaning,
the
best
singers
being
usually placed
less
and those of
v.
reputation
Notcutt, 1896, 12
But
whenever
it is
not
imputation
to, there
is,
or
who
is
make
the matter
Contrast these two cases. In one the words were, " Did he have a fire twice ?
He
is
a funny fellow
"
!
of
in
INNUENDO
;
98
Claim contained no innuendo at all it was held that no action lay, for there was nothing to show that the words imputed a crime (Jacobs v. Schmcdz, 62 L.T. 121 6 Times L.E. 155). In another case the plaintiff's house had been insured when it was burnt down, the insurance company at first demurred to pay the insurance money, but ultimately paid it. The defendant subsequently, in the course of a quarrel with
;
never set
my
premises on
fire "
and
" I
was
my
premises on
fire."
These words were set out in the Statement of Claim with proper innuendoes, and they were held to be a slander on the plaintiff ( Cutler v.
Cutler, 10 J.P. 169).
where necessary, the plaintiff must satisfy the jury that the words of which he complains have in fact conveyed to the minds of some at least of those who read them a definite imputation on a definite person, and that definite As soon as he has person must be himself. established these facts, and also that it was the defendant who published those words in
print or writing, he has
made out
prima
facie case.
94
in
Truth
And now we
pass on to consider
what
is
prima
facie case. The defendant in his pleading will probably deny some, or perhaps all, of the material allegations in the Statement of Claim.
an action of libel to For instance, really have appeared in the defendant's newspaper, he had better be honest and admit the fact, if for no higher reason than this that the plaintiff can prove
It is foolish, as a rule, in
It looks
weak.
by putting
is
in a
The
by
the
plaintiff
The defendant
the
may
innuendo.
He may
traverse
statement
There
no necessity in an action of
libel to
But
tive
defendant
may
;
of course set
or
up some
affirma-
defence
he
into
in
TRUTH
'
95
Limitations.
special defences
which are peculiar to an action for defamation are Privilege and Truth. The onus of proving
each of these defences
Privilege
for
is
lies
on the defendant.
is
my
next lecture.
But there
still
time
the
techIt is
to
deal
plea
that
defendant's words are true. This is nically called " a plea of justification." a complete answer to the action.
If the
words are true, there is an end of the matter the plaintiff cannot recover damages because his reputation has been brought down to its proper level, however malicious the defendant may have been in writing the libel. This may be to some extent a surprise to some of you because there is a time-honoured " The saying which men still often quote
;
:
:
The
very
man you
is
he con-
in
knowledge of law, and also generally to prove to his listeners how wicked and absurd the law of England is, as though that law was something which did not belong to him, and It for which he was in no way responsible
96
in
is
little while.
for a
The
maxim
libel "
never had any application at all to civil actions for damages it was formerly the law
:
in
criminal
cases
but even
there
it
was
that
modified,
Still,
many years ago, as we shall see. you may say, it does seem hard
man
and publish
it
afterwards,
when
am
leading a blameless
So
it
is.
fre-
im-
when they
came out of prison, because, as soon as they obtained employment anywhere, the police would inform the employer of their previous conviction and then' they were at once disIf this ever was the practice of the charged.
police, I
am
it
has ceased.
Learned judges have expressly declared that not the duty of the police to do so but that on the contrary such action was " unnecessary officious and cruel." Still it is not actionable. Even in cases where the malice of the defendant is clear, no action lies if the
it is
;
in
TRUTH
97
defendant has said no more than the literal truth. No law can be framed which cannot be made to press harshly on individuals under exceptional circumstances and in the hands of
uncharitable
strictness
persons.
But, as
a
is
rule,
the
to
made
is
a sufficient
really
for if a
man
making a statement, he is almost sure to go beyond the truth, and say too much and then his plea will fail. It is presumed in favour of a plaintiff that The plaintiff all defamatory words are false. therefore need give no evidence to show that
malicious in
;
the libel
is
false
it
is
for the
defendant to
And
he will
not be allowed to try and prove this, unless he has specially pleaded in his Defence that He must prove that the the words are true. whole of the words set out in the Statement It is no deof Claim are substantially true. fence that they are half true, or three-quarters He must go the whole length or subtrue. mit to judgment.
what lawyers mean when they say, must be as broad as the charge, and must justify the precise charge." H
This
is
"
The
justification
98
THE LAW
OF.
LIBEL
ment
true.
of Claim,
are
say-
Still less is it
him
to
he might have written about the plaintiff with The Court keeps perfect truth, but did not.
to the charge actually made. If
you have
me
that I
am
" a
you
will
not be allowed to
I broke the bank at Monte Carlo though that might have been relevant if it had only occurred to you to call me a gambler.
prove that
A. L. Smith
in
Rassam
v.
Q.B. on
"to
p. 577, a defendant may not plead Statement of Claim, alleging that the
defendant had said the plaintiff stole a pair of boots, that what the defendant said was
that the plaintiff's footman stole the boots,
true."
"A
had been guilty of not enough for the defendant to that would be a bad plead that A said so
that the plaintiff
it is
fraud,"
plea.
He must
his
in
tiff
TRUTH
99
had in fact been guilty of fraud. If he is not prepared to go that length, he must paymoney into Court, and urge in mitigation of
damages and that
at the trial that
so,
was
enough
A,
is
to believe him.
The
;
never thought
it
worth
it
wholly immaterial
amount
of damages.
Each man
sue
in turn
;
is
and the
likes,
person defamed
It will
may
whom
he
or
substantially true.
slight inaccuracy as to
some
if
such inaccuracy in
no way alters the character of the imputation. But if the words which the defendant cannot
prove to be true are a material aggravation of the main imputation, or insinuate some
further charge in addition to
will be entitled to a verdict.
is, it,
the plaintiff
test
The
always
Did the
libel as
effect on the mind of the reader from that which .the actual truth would have produced ? We may illustrate this by contrasting two
100
cases,
was defendant.
which a railway companywas too much the practice formerly for railway companies to "gibbet" any one whom they had caught in the act of
It
his
name
and address on the walls of the station. In the first case, Alexander v. North - Eastern Railway Company, 34 L.J. Q.B. 152, tried in 1865, the hbel complained of was a notice of this kind, which stated that the plaintiff had been convicted of riding in a train for which his ticket was not available, and that he was sentenced to be fined 1, or to three weeks' imprisonment in default of payment. Proof that the plaintiff had been convicted of that offence and had been sentenced to be fined 1, or to a fortnight's imprisonment in default of payment, was held sufficient for the error of one week could not have made any difference in the effect which the notice complained of would produce on the mind of the public. But a different conclusion was
;
South-Eastern Railway Company, 18 L.T. 738. There the plaintiff had been convicted before the Lord Mayor of
later,
Gwynn v.
travelling
on
the
in
TRUTH
to
101
London Bridge
ticket,
Cannon
Street without a
and sentenced to a
fine of
one shilling
imprison-
with
fine
seems to
serious doubts
published
placards
stating
that
fined,
the
plaintiff
and
ment
at
this Mr.
libel.
Gwynn He con-
tended that the words " imprisonment with hard labour " were not only inaccurate, but that they also conveyed to the mind of the reader a wholly false impression as to the
enormity of the offence which the plaintiff had committed. The judge left it to the jury to say whether the defendants' words were
really a substantially correct account of the
conviction
and
as the railway
fit
name and
and had
words "hard labour" in espeprominent type, the jury awarded the plaintiff 250 damages.
also set out the
cially
Although a plea of
102
III
answer to the action, unless it justifies the whole libel, still, the defendant is sometimes allowed, in mitigation of damages,
a complete to justify part only, provided such part contains
distinct
imputation which
rest.
can
be
So he
may
some-
the
rest.
intelligible
tinct
tiff
To be fairly severable, it must be by itself, and must convey a disand separate imputation upon the plainv.
if
(Davis
Thus,
Billing, 1891, 8
Times L.E.
a forger and
58).
you say
man
is
is
true,
for
and separate imputations. But I remember an instance in my own practice some years ago, where I availed myself of this rule, though I am afraid that strictly it did not
apply.
Two
fathers were
summoned
before
his
Both were
fined.
The
in
JUSTIFICATION
103
by
a blunder he
child,
man
who
appeared as being fined for not vaccinating his child. "Well, the latter father did not
He commenced
an action at once
this, he said, was an I law of the land thought the action was a somewhat trumpery one one in which a little more liberty than
and
offence
the
and accurate report of two judicial proceedings and I paid forty shillings into Court
;
name.
I
up
in this
way
the
AB
such and such an offence," he contended that I could not sever the name A B from the
104
ni
pay money into Court for that and then go on to state that some other person, not A B, had in fact been conrest
He argued it victed of the offence alleged. very forcibly in the Bar-room outside the judge's room at Chambers in the Eoyal
Courts to an admiring audience of the junior
Bar,
to
come
He
Odgers
is
an
ass,'
and
an
I
ass
"
Xow,
if
Odgers I had made a was true that Jones was he had argued his case in
'
'
this
way when we
some reason
but
for
he
natural
delicacy,
no doubt
shrank from giving the learned judge this telling instance. Manisty, J., obviously
it
thought
was queer pleading, but he held that it was allowable under the circumstances and in such a silly action. So he confirmed the Master's order with costs, and the action
never came into Court.
Where the
plaintiff
words a secondary meaning by the aid of an innuendo in his Statement of Claim, the de-
"I
JUSTIFICATION
105
fendant
will be
may
and
in fact,"
and that
taken to mean that he is prepared to prove them true in whatever sense the jury may find to be their proper meaning. Or the defendant may expressly refer to the innuendo,
words either with or without the innuendo that is, either in their primary or in their secondary meaning, whichever he
justify the
and
pleases
396).
this.
(Waikin v. Hall, 1868, L.R. 3 Q.B. But he must be very careful about For if he justifies them with the in-
nuendo, the jury will naturally infer that the innuendo is correct, that it expresses what the defendant really meant, and he will have to prove it true "up to the hilt." But if he
justifies
the words without the innuendo, then he can never say at the trial that the words are true in the secondary sense ascribed to
;
by the board it becomes an irrelevant plea. The words may be literally true but that is wholly immaterial, if the jury
tion goes
;
;
find
that
they conveyed
to
the
reader
106
ill
literal
p.
See Williams
v.
Smith, ante
91.
if I called
a trader a
"man
of
hay and
straw.
stance.
If Mr.
would be
that
the
idle for
him
reverend
gentleman
if
But
make
culars
how much he
trial,
true at the
For the plaintiff comes into Court, precisely what is going to be said against him, so that he may prepare to meet the charge.
intends to try and prove and how much he does not. is entitled 'to know, before he
IV
PRIVILEGE
Ix the
last
lecture
we began
to consider the
We
a privileged occasion.
justified
As
a rule, a
man
is
not
defamatory statements about his neighbour which he cannot afterwards prove to be true. But there are occasions, on the other hand, on which it is a man's duty to state his real opinion fully and frankly, without thought or fear of consequences and
in
;
making
privileged occasions.
It
is
privileged or not.
108
iv
the administration
of
complete immunity
lege attaches.
to these
an absolute
privi-
In such cases, no action is permitted, even though it be alleged that the writer knew his words to be false and wrote
them with
deliberate spite.
many
There
is,
however, a
much
larger class of
is
a qualified
one occasions on which it is the right or duty of the defendant to state what he honestly believes to be the truth about the plaintiff, but on which the interests of society do not require that he should be freed from all responsibility.
he
good faith, but was actuated by some improper motive in writing as he did. This improper motive is called " malice." It is for the defendant to satisfy the judge that the occasion
is
privileged.
When
this
is
done,
it is for
the
plaintiff to
prove malice.
it is
iv
PRIVILEGE
109
The Court,
high reasons of State, declines altogether to entertain the action. Take, for
for
spoken on the bench,: no such proceeding will be permitted, whether malice be alleged or not. But if I am asked to give my discharged ser-
vant a character by some one who is thinking of taking her into his employ, it is my duty
to state
what
I
;
is
privi-
But
if I state
what
know
is
not true
am
it
angry with her and good situation, actuated by maHce. And such
I
am
because
cases
is
not
to
absolute.
privilege,
It
is
only in
the
to
of qualified
then, that
in
plaintiff has
prove
malice
It
is
order
always useful
prove malice, if you can, in order to enhance the damages but such evidence is not essential to the cause of action, until the
;
judge rules that the occasion of publication is privileged, and that such privilege is not
absolute.
It
is*
"
is
110
iv
libel,
it
into
many
in
"malice
slander.
is
But
is
these cases
the
word
sense
it
lawful excuse.
are malicious in
they are not employed under circumstances which excuse them in fact, that they are not
privileged.
But
this
is
very technical,
almost a
fictitious,
use of the
word
it
is
use which has been termed by more than one learned judge. I prefer to keep to the popular and ordinary sense of the word. So in these lectures, please note that " malice " is always used to denote some illfeeling towards the plaintiff or the class to
which he belongs, some mean or crooked motive of which an honourable man would be
ashamed.
This
is
Using
till
the
is
no part
As soon
as the
iv
PRIVILEGE
is
111
the occasion
prove malice, but not before. Every lawyer will, I think, admit that the last two sentences accurately state our present law and practice in actions of libel. But at
the same time I must admit that they do not
state that law
in the ortho-
dox
my
There is plenty of authority for modern way of putting it but still that
fashion.
:
modern way is not yet universally accepted and recognised. This is how our older judges and text -book writers would state the same
proposition
:
" Malice
is
need be, proved. It is not necessary, however, for the plaintiff to prove
alleged, and, if
it
in
the
first
instance, because
it
will
be
presumed in his favour. The law presumes malice from the publication of defamatory words. But if the occasion be one of qualified privilege then the privilege arising from the
occasion rebuts the of malice
plaintiff
no longer presumed
in his favour."
end
it
is
112
iv
fusing
is
way
of stating the
in two entirely which the law is said to presume from the publication of defamatory words is something quite different from the malice which the plaintiff must prove in order to rebut the " defence of privilege. One is " malice in law a fiction the other is malice in fact. Let us forget the fiction and stick to the fact.
same rule of law. It word " malice " is used The malice different senses.
Now
by
stating
is
something which
not the
fact.
Malice
case
: :
no
prima facie
it is
in nine
The
done to the
plaintiff's reputation
ant's words.
If the defendant's
action lies
affords a
prima facie
may
:
be rebutted by
But no
have it that malice is the gist of the action which is obviously false. Then, having told that falsehood, they are met with the fact that no plaintiff ever yet was non -suited in an action
iv
PRIVILEGE
113
and
also
in
damages.
another
To get over
falsehood,
this,
they
invent
that
the
law
presumes
malice from the mere fact that the defendant has published words defamatory of the plaintiff.
for it
The law presumes nothing of the kind knows that half the libels published are
all
Take, for
Shepheard
v.
Whitaker,
made
a mistake in setting
up
London Gazette. They placed the name of the plaintiff's firm under the heading " First
Meetings under the Bankruptcy Act " instead of under " Dissolutions of Partnership." An
Blackburn
v.
v.
Wenman
Huntley
3 C. & P. 146 v. Blackburn, 1827, 4 Bing. 395 Ash, 1853, 13 C.B. 836, 845 22 L.J. C.P. 190, 193 Ward, 1859, 6 C.B. N.S. 514 1 F. & F. 552.
; ; ;
114
iv
of the paper no damage to the plaintiff was proved to have followed; and there was no Yet in an action suggestion of any malice.
brought against the proprietor of the paper, the plaintiff recovered 50 damages.
for libel
And
and that the damages awarded were not excessive. But it is preposterous to saythat the law presumed malice in such a case as this. I can only echo Mr. Bumble "If the law supposes that, the law is an ass You will find just the same random generality in the law of contract. First, it was
libellous,
: !
solemnly
laid
down
that
" every
contract
which
The student discovered promptly numerous covenants which were not supported " Oh yes," came the by any consideration.
not
true.
mendacious reply, " but they are under seal and a seal imports a consideration." Why any one should suppose that a bit of sealingwax on the parchment would import a consideration
into
the
transaction,
cannot
imagine.
You might
man
must have a handsome balance at his bank, because he has a handsome knocker on his
front door.
It
is
iv
PRIVILEGE
If it were,
115
imports a consideration.
could ever
no one Suppose a man settled some money on his wife and shortly afterwards became bankrupt, the trustee would
make
a deed of gift.
the settlement
aside,
as
being
voluntary.
Could you possibly argue that it was not a voluntary settlement because it was
under seal ? I should like to see the face of Mr. Justice Vaughan Williams when you told
of a wafer necessarily
must be
of tort.
ei
damnum
that true
et%
?
Is
What
v.
about Ashby
is
v.
White ?
rule
is
Ashby
;
White
only an
apparent exception
a damage."
Does
It
If it does, there
et
was
damnum
would have been enough to say simply that there must be an injuria. But both propositions are untrue injury does not import damage, any more than a seal imports a consideration and it is not necesinjuria.
:
the actions
of
tort
daily
tried
in
our
Courts.
116
iv
what
was taught
!
as a
boy
how
The
is
one
lie
leads to another
Let us get rid of all these antiquated attempts to make our law presume something which is
contrary to the obvious facts of the case.
malice worth
presuming.
is
no question
;
to the jury
if
and judgment will pass for the defendant, however malicious he may have been. Should the judge rule that the occasion was one of qualified privilege, then and then only does the issue as to malice arise
an end of the case
in that event, the plaintiff will recover if he
if
he
I.
Absolute Privilege
many
occasions to which an
:
nor
is
it
desirable
iv
ABSOLUTE PRIVILEGE
117
The judges,
as I
have said, decline to extend the number (Proctor v. Webster, 1885, 16 Q.B.D. 112). They may be grouped under three heads
:
(i.)
(ii.)
(iii.)
Parliamentary proceedings,
Judicial proceedings,
(i.)
Parliamentary Proceedings
laid
2,
It
was
and debates
or
proceedings
in
Parliament
ought not to be impeached or questioned in any Court or place out of Parliament." Hence no member of either House is liable in a court of justice for any words spoken in Parliament (Dillon v. Balfour, 1887, 20 L.R.Ir. 600; Fielding and others v. Thomas, 1896, A.C. Any petition to Parliament or to any 600). committee of either House, and all evidence given before any such committee, is absolutely
privileged, although
it
may
defamatory statements. But this privilege did not extend to any publication outside the walls Hence at common law, even if of the House,
"118
iv
privilege
attached.
You
are
no doubt, with the celebrated Hansard case of Stockdale v. Hansard. was the printer and publisher to the House That House ordered him to of Commons. publish a parliamentary paper which contained Hansard did a serious libel on Mr. Stockdale. what the House told him to do, and Stockdale brought his action. The libel was clear, the hence there was no publication was clear Hansard pleaded, it is defence to the action. true, that the House of Commons had ordered him to publish the paper which contained the It had been libel but that was no defence. laid clown in 1693, more than a century previously, that " the warrant of no man, not
familiar,
; ;
even of
the
King
himself,
can
excuse the
doing of an
illegal act."
Commons
of
afforded
Hansard no
offence.
At
the action as a
contempt of
iv
ABSOLUTE PRIVILEGE
to the Tower, though he was the
;
119
Denman
offender
main
the
but
Stockdale,
his
attorney,
process-server,
Sheriffs
Sir
William Follett, Sir E. Sugden, Mr. Pemberton, and all the lawyers in the House, except the Attorney -General, assured them they were wrong, but the House of Commons would not
listen
to
reason.
At
last,
better
counsels
prevailed,
was
4
the 3 &
either House.
(ii.)
Judicial Proceedings
lies
No
action
be taken before a Court which has no jurisdiction in the matter, or if they be taken before
a body which
is
not a Court at
all,
there
is
of
120
iv
remember that this point was raised in the action which the managers of the Koyal Aquarium brought
course no privilege.
will
You
against
Mr.
Parkinson,
Council.
member
of
the
London County
He was
a gentle-
attending music halls and I think he must have been a little short-sighted. Anyhow, he honestly believed that he saw something which nobody else saw, and which did not in fact take place. He was also, it appears, not a judge of Japanese costumes he did not know how to distinguish the male from the female attire of that country. But though not a judge of this, he contended that on the London County Council he was a judge, and that his speech on the subject which was being discussed before the County Council was his judgment, and as such was absolutely privileged. But the Court held that he was no judge
;
that
is dis-
an administrative and not a judicial body. Such places of entertainment are illegal, unless the county authorities grant them a license and the granting or the refusal of such a license is not an adjudication
licenses it is acting as
;
iv
ABSOLUTE PRIVILEGE
121
of the discipline
on the rights of the parties, it is merely a part and management and the
It is clear,
from sub-section 2 of section 78 of the Local Government Act, 1888, that no judicial powers were transferred to the London County Council. Hence that august body is not a Court and speeches made by members at its meetings have only a qualified, and not an and so Mr. Parkinson lost absolute, privilege the action and had to pay 250 damages {Royal Aquarium, etc., Society v. Parkinson,
; ;
1892,
Q.B. 431).
(iii.)
Acts of State,
etc.
It
is
not competent to a
official official
civil
court to
made by one
course of his
making
it.
A
and
and to the
the
to
all
official notification
of such acts in
;
London
Gazette ; to
all
State papers
its
minis-
ters or ambassadors.
It is contrary to public
122
II.
Qualified Privilege
We pass next to cases of qualified privilege. We must leave the discussion of Privileged
Reports
till
my
next lecture
but
we can
deal
which
from Duty and Common Interest. And here we have the advantage of having a clear rule or canon laid down for us by Lord Campbell, C.J., in Harrison v. Bush, 1855,
arise
5 E.
& B. at pp. 348, 349. It is as follows : " A communication made bona fide upon any subjectin-
is
privileged,
made
legal
the word 'duty' cannot be confined to which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation."
duty.
And
duties,
Both parties, you observe, must have either an interest in the subject-matter of the communication or some duty to discharge in conThe law does not protect nection with it.
idle
gossip
or
officious
interference in other
persons'
affairs.
it
It
duty, or
he does
iv
QUALIFIED PRIVILEGE
123
writes
must have
either
some duty
to perform
Campbell says,
The duty,
;
as
a social or
moral duty will be sufficient. So, too, the interest need not necessarily be pecuniary. On the other hand, mere curiosity is not sufficient. It must be an interest which the law
recognises
in detail the
working
of this rule.
In the
first
fidential
inquiries
is
are
privileged.
"If
person
in
who
his character
any matter of business asks a question about from some one who has means of
it
is
knowledge,
the
for the
interests of society
answer
is
a privileged
and communication
;
Waller
v.
Loch,
1881,
of
I
the
'
have already stated (ante, p. 109), if a lady is asked as to the capabilities and character of a servant formerly in her employ by any one
who
it is
the
124
iv
lady's
tell in
The same
rule
is
applies
whenever a
confidential
inquiry
made
it
or as to the
fessional
competency and
skill
of a pro-
man.
is
whom
to
question.
So here
is
that necessary
the question
it must be a relevant answer to the question, and not branch out into immaterial matters. Subject to these
seriously
and honestly
it
as a
duty to
a person
J.,
in
2.
when inquiry is made " (per Grove, Robshaw v. Smith, 38 L.T. 423).
Communications volunteered. So long communication is made in answer to a previous inquiry by a person interested, the case presents little difficulty. But there are cases in which it becomes a man's duty to go
as the
of his
own
iv
QUALIFIED PRIVILEGE
125
him
certain information
rule, no doubt, the safer course you are applied to but life or property may be in imminent and obvious
unasked.
is
As a
till
to wait
peril,
or
there
may
be other circumstances
which make it clearly the duty of a good citizen to go at once to the person most concerned and tell him everything, without waiting for him to come and inquire. It may well be that he has no suspicions, and never would inquire into the matter unless
warned.
In what cases, then,
is it
come
to
concerns
Well, clearly,
and confidence in you, and could justly blame Such a confiyou if you remained silent. dential relationship exists between husband and wife, father and son, brother and sister, guardian and ward, master and servant, principal and agent, solicitor and client, partners, Thus it is clearly or even intimate friends.
repose trust
whenever a between us
whenever
confidential
exists
the duty of
my
steward,
bailiff,
foreman, or
126
iv
housekeeper to
management
to inform
of
me
if
know
and
that anything
till
is
my own
myself begin
So my family solicitor may voluntarily write and inform me of anything which he thinks it is to my advantage to know, without waiting for me to come clown to his
asking questions.
office
and
inquire.
But
it
for
another
for
solicitor,
whom
employed, to
tion
is
;
volunteer
I retain
till
him
may warn
associating
a
or
may warn
;
in the army, or in a
Government
inform his
office,
it
official
superiors of
conduct on the part of his subordinates ; for the defendant is in some degree answerable
for the faults of those
control.
But
it
iv
QUALIFIED PRIVILEGE
are officers
it is
127
or clerks
of equal
rank and
tales of B,
standing,
the duty of
;
A to tell
except in self-defence
him
to do his
own work
invested
over B.
It is where there is no such relationship, where no such confidence is reposed, that the difficulties arise which have sadly puzzled our It is all very well for Chremes to judges. say, "Humanum nihil a ine alienum puto." But the law does not sanction so extensive an
concerns.
uni-
no
is bound to sit silent and see a crime Take this case. committed under his nose. has honestly come to the conA housemaid
one
is
She has some grounds for suspicion grounds which appear to her sufficient but she has no What ought she to do ? She positive proof.
;
feels
master to remain in
ignorance of what
But if she speaks, the cook will is going on. The master may not probably lose her place. take the trouble to investigate the matter
128
iv
but will just dismiss the cook, time may still be innocent.
This clearly
is
who
all
the
than of law. And the answer must depend on the facts which the girl regards as susare they strong enough to make it her picious duty to tell her master ? a difficult question The only rule for a housemaid to decide. of law applicable to such a case is that laid down by Blackburn, J., in Davies v. Snead, 1870, L.E. 5 Q.B. at p. 611 : " Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona fide and without malice does tell them, it is a privileged communication."
But
it
is
one of
my
tradesmen
is
about
I
man whom
may
what
so
Is it right, in
am
I to
lose his
money
was considered
clear
iv
QUALIFIED PRIVILEGE
if it
129
lie for
were given as
Cleyson,
"
good
v.
1597, Cro.
Eliz.
III.
So
v.
it
was
in the days of
George
{Hewer
in
But
Dawson, 1765, B.N.P. 8). 1838 Lord Abinger, C.B., held that
the
defendant
must wait
till
the
" If the tradesman applies to him for advice. defendant had been asked by Mr. Butler as to the plaintiff, and had said what he did without malice, no action would have been maintainable but as he made the communication without being asked in any way to do so, he is liable in this action, if the words reflect on " the character of the plaintiff as a tradesman
;
(King
v.
Watts, 8 C.
&
P. at p. 615).
And
in
Bennett v. Deacon, 1846, 2 C.B. 628, the Court of Common Pleas was equally divided on this question. How our present Court of Appeal would decide the point I cannot say But I venture to think that it for certain. would follow the judgments of Tindal, C.J., and Erie, J., rather than those of Coltman and Cresswell, JJ., and hold that such a
caution was
prima facie
privileged.
Coxhead v. Richards, 1846, 2 C.B. 569, the same Court was equally divided on a
In
130
may
conduct at sea. Here again, I think the view taken by Tindal, C.J., and Erie, J., would
probably prevail in the present day.
And
difference of opinion
over
Stanley's valet
341).
was the valet of Mr. H. M. Stanley. They both stayed for some days in Edinburgh at the Waterloo Hotel then they went to Newcastle-on-Tyne, where they were entertained at the Mansion House by the defendant, who was Mayor of Newcastle. While they
;
were there, the chief constable of Newcastle received from the chief constable of Edinburgh
a letter stating that a lady's gold
watch and
and that suspicion had fallen on the plaintiff. This he at once showed to the Mayor, who did nothing for a few days, but just before Mr.
Newcastle he told him privately And Mr. Stanley, after thinking it over for a day or two, disStanley
left
missed the
plaintiff,
who
in consequence sued
iv
QUALIFIED PRIVILEGE
131
the
Mayor
for
damages.
who
recovered
250 damages.
fendant appealed.
Lord Justice Lopes agreed with Mr. Justice Wills but the other members of the Court
;
took
the
opposite
was
privileged.
aside,
and
view that the occasion so the verdict was set judgment entered for the de-
And
fendant.
gave just now, who has no access to the Law Reports, but who must settle for herself by the light of nature these vexed questions on which eminent judges differ
3.
Publications made
ant's
own
interests.
There
to
less difficulty
in the cases where the defendant has an interest in the subject-matter of the
whom
For instance, if the housemaid did tell the it would clearly be his duty to hear what the cook had to say in her defence, and it would be the interest of the cook to defend
132
iv
herself
hence
all
be privileged.
So
may
If my letters write to the railway company. go wrong, I may complain to the PostmasterGeneral. In short, all communications made in self-defence to protect the defendant's pri-
by the plaintiff, are privileged Pugh, 2 C.B. 611 Laughton v. Bishop of Sodor and Man, 1872, L.R. 4 P.C. 495).
;
made (Blackham v.
Any
ance
one
is
who
quarter.
But he must apply to a person who has It some duty or interest in the matter.
is
believed
This
case
is
the point
decided
in
the
2
of Hebditch
Macllwaine,
1894,
Q.B. 54.
Guardian of the Poor for his native village, South Petherton, in Somerset. His ambition was gratified he was elected. He proudly attended the first meeting of the new Board. There to his dismay the Clerk at an early
;
stage of the
proceedings
read out
letter
iv
QUALIFIED PRIVILEGE
133
South Petherton, alleging that the plaintiff had obtained his seat by tampering with voting papers, and treating the electors with cider. Now a Board of Guardians has no jurisin
diction
in
such matters
or
it
cannot try an
of course
election petition
illegal
practices.
The defendants
:
having the election in their but the conducted Guardians to whom they addressed their complaint belonged to other parishes, and had The neither interest nor duty in the matter. jury found in favour of the defendants that they honestly and reasonably believed that the Board of Guardians had jurisdiction, and
interest in
had an
own
parish
properly
was consequently the proper authority to whom to apply. But the Court of Appeal The fact held that finding to be immaterial. was that the Board had no jurisdiction and was not the proper authority to whom to apply and that fact destroyed the claim of
;
privilege.
4.
Common
Interest.
Whenever
two or
more persons have a legitimate interest in the same matter, all communications passing between them with reference to that matter are
134
iv
Such common interest is generally a pecuniary one, such as two shareholders in the same company, or two creditors of the But it may also be same debtor, possess. professional, as in the case of two officers in the same corps, or masters in the same school, anxious to preserve the dignity and reputation of the body to which they both belong. In short, it may be any interest arising from the joint exercise of any legal right or privilege, or from the joint performance of any duty imposed or recognised by the law. Thus two executors of the same will, two trustees of the same settlement, have a common interest, though not a pecuniary one, in the management of the trust estate. So the ratepayers of a parish have a common interest in the selection of fit and proper officers to serve
privileged.
the rates.
have a
cerns.
lege.
common
there
interest "
is no privimust be one
and
appreciates.
No
however
in-
teresting
hearers.
may
in
be to both
the
speaker and
fact,
defendant had no
iv
QUALIFIED PRIVILEGE
135
other
interest in the matter beyond that which any other educated person would naturally feel, interference on his part would be officious and unprivileged.
was an
and had
and carry out the restoration of Skirlaugh Church. The defendant was a clergyman residing in the county, but he was neither the patron nor the incumbent of the church, nor a member of the committee appointed to effect its restoration. He was not a parishioner of Skirlaugh and it did not appear that he was
;
Still
upon himself
to write a letter to a
member
"I
is
see that
who
Wes-
and can have no experience in church Can you not do something to avert the irreparable loss which must be caused if any of the masonry of this ancient gem of art be ignorantly tampered with ? " The letter was clearly a libel on the plaintiff in the way
work.
of his profession or calling.
Kelly, C.B., on
136
iv
a motion for a new trial, declared that he was " at a loss to see what privilege the defendant
possessed, under the circumstances of the case,
and the
make an
example" of a member of his flock, by commenting on his misconduct, and either naming him or alluding to him in unmistakable terms. If he does so, his words will not be
privileged, although uttered in the honest desire to
of his hearers.
congregation would
more
interest in this
;
part of the discourse than in any other that will not create any privilege
:
but
they do
1877,
neighbours
other
(Magrath
v.
Finn,
Many
privilege.
rule
is clear.
Both
he
in or
whom
iv
QUALIFIED PRIVILEGE
137
some duty to discharge in connection with it otherwise there is no privilege. And even where there is such a privilege, the plaintiff can destroy it by proving that the defendant was actuated by malice.
In
my
last,
lecture.
I.
qualified privilege iu
To-night
propose to discuss
consists of reports
reports
of trials, reports of
a Vestry or a
debates
in
Parliament
or in
public,
meetings.
And
if
the speakers at
all
such
gatherings
always confined their remarks to matters of public, interest, and commented only on admitted facts instead of inventing
facts
for
comment, the proprietors of these newspapers would run no risk. But suppose that a speaker on one of these, occasions exceeds the limits of
I'KIVILErjED
fair
REPORTS
139
comment, and attacks my private life, and makes .statements about me which are untrue, ought these statements to be reported
ft
my
friends
may
I
gloat over o
them
morning
my
reputa-
you may say, could sue the speaker he is most to blame. Perhaps T could perhaps I could not. The words may not be actionable when spoken, though they are
Well,
;
libellous
when printed
ance
may have
the occasion.
Anyhow,
may
and
1
shot."
If
And
whether he is liable or not, whether he is worth suing or not, are questions which should not affect, and which never as a matter of law
have been allowed to
the paper.
For, after
all, it
is
affect,
my
right to sue
newspaper. which seriously injures the reputation of the person attacked at such a meeting.
140
The consequences of reporting in the local paper calumnies uttered at some political or The parish meeting may be very serious. and attended, meeting may have been thinly
may have known that the speaker was not worthy of credit it was the newspaper that printed and published the falsehood
the audience
;
to
all
the world.
the excitement of the moment are thus diffused throughout the country, and remain recorded
in
No one can tell into whose hands a copy of that newspaper may come. Moreover, additional importance and weight
nocent person.
is
its
republication
columns of a respectable paper. Many people will believe it merely because it is in print. There is, in fact, as I pointed out in my first lecture {ante, p. 4), an immense difference between the injury done by such a slander and that caused by its extended circulation by the press and many a jury has awarded substantial damages against the newspaper under such circumstances. At common law (i.e. apart from any legislation on the subject) an action lies against every one who reports or repeats defamatory
in the
;
PRIVILEGED REPORTS
141
who invented
set it in circulation.
it,
he has given
It is
it
in-
it on no defence,
from another. And it makes no difference whatever in law that the defamatory words are preluded with such
story but had heard
it
phrases as
"We
or
hear," or
"
"We
are creditably
have it on the best Such phrases will not authority that," etc. There is prevent or diminish your liability. if, when reporting deone slight exception famatory words, you name your authority " Brown tells me so and so " then you may
informed,"
:
We
Brown
did in fact
you so, but in mitigation of damages only, not as any defence to the action. This is a sensible and useful rule of law, but it must not be too strictly applied. It is clear that there must be some exceptions made for instance, it is for the public good to it that the proceedings in Parliament and in the Law Courts should be fully known and
;
142
accurately
even
though
defamaAccord-
common law
(before
any
ex-
two
Reports of
proceedings
judicial
and parliamentary
were privileged.
(a) Reports
of Judicial Proceedings
A
may
fair
it
be abridged or condensed, but it must not be partial or garbled. In olden times papers were expected to reserve all report of
a case
till
now
it is
may
be published of the
plaintiff's
tell
favour,
against
him
for
are stated in
full,
it
will
be a question
the jury
how
PRIVILEGED REPORTS
143
and whether such deviation from accuracy makes the report unfair.
absolute
The
sages
;
jury,
in
considering
the
question,
much on
isolated pas-
they should consider the report as a They should ask themselves what impression would be made on the mind of
straight through,
case
an unprejudiced reader who reads the report knowing nothing about the
beforehand.
;
Slight
errors
may
easily
occur
and
if
a substantial misstatement
fact,
any material
prejudicial to
unfair.
See
may Rumney v.
report
the
who
are
often
in-
subsequently
fail
to prove.
He
should
re-
144
cord
the
summing up
of the learned
judge, which
The reporter
open court.
He must
He must
not
hint mysteriously at evidence which might have been given and was not. In one case (R. v. Gray, 26 J.P. 663) a reporter was convicted and fined 50 for adding after a report of some proceeding before a coroner a sensational paragraph commencing, " From
inquiries
made by our
at
all,
reporter,
it
appears
that," etc.,
inquiries
some
lent
startling
him by the
clerk,
which had
or,
His duty
is
to
trial,
present as
much
were.
who
;
He must
may
perhaps be justifiable on
PRIVILEGED REPORTS
145
another ground, that they are fair and bona jide criticism on a matter of public interest. But, if so, they should not be mixed up with
the history of the case, but should be put in
the form
if
and they
over.
the
trial is
sensational
headings
to
reports
should be avoided.
published a
fair
and
Shameful conduct
ages
for
the heading.
headed, "
So where a similar
B. treats
report was
How Lawyer
judge held that this amounted to a charge that Lawyer B. generally treated
his clients," the
had been
and the defendant had to apologise and pay costs. Such reports are not absolutely privileged.
treated,
made defendant)
ist,
cover damages.
for
146
the
papers,
the
party
or
his
newspaper) would be liable to pay damages, if the jury thought this was done maliciously (Stevens v. Sampson, 5 Ex. D. 53). So again, if a newspaper published every day during an election a fair and accurate report of a trial that had taken place, say ten years ago, in which one of the
solicitor (not the
would be open to the jury to find malice. But it is very seldom that such cases occur. There are, moreover, two cases in which
and accurate, are not privileged, and are inillegal. The first is where the Court
itself
deed
has
prohibited
the publication,
as
it
Every Court
But
proceedings
pending
is
litigation.
such a prohibition
is
now
rare.
The second
obscene or blasphemous
It is a
But except
in these
two
PRIVILEGED REPORTS
147
may
be
even though they are ex parti' even though one .side only is represented on the application). This was decided in
Usill
v.
Hales,
CRD.
319,
where
the
applica-
made
Masters' and
Workmen's
Act.
A similar
Kimber
v.
ques-
The There
solicitor,
he travelled home to dinner by the Metropolitan Railway, and suddenly came on a short paragraph in
was reading
which
his
name and
an application had been made against him at Canterbury, behind his back and without his
knowledge, for a summons charging him with
Such applications are usually heard and with closed doors. But in this case no order was made by the magisAs a matter of trates excluding the public.
perjury.
in
private,
fact,
making
however, the only persons present at the of the application were the magis-
appli-
editor
148
of the
two
local
newspapers.
No
attempt
On
summons
at
without the plaintiff being called on for his defence and the defendants published a
;
full
ing papers.
On
these facts
it
was held by
Mr. Justice Hawkins, on 29th June 1892, that there was no evidence to go to the jury, and the plaintiff was accordingly non-suited. And
this decision
in the
(b)
and accurate report of any proceeding in either House of Parliament is privileged, even though it contains matter defamatory of an individual. The analogy between such reports and those of legal proceedings is now complete and precisely the same questions must be left to the jury in both There was for a long time great doubt cases. on this subject, but in 1868 the law was clearly
;
Every
PRIVILEGED REPORTS
149
aud
satisfactorily settled
v.
by the
4
decision in
73.
Wason
Walter, L.K.
Q.B.
The
doubt was caused by the fact that there were Standing Orders of both Houses of Parliament prohibiting all such reports and it was argued with some force that no privilege could attach to anything which was published in contravention of such Standing Orders and which was therefore in itself a contempt of the House. We have seen that when a learned judge expressly prohibits the publica;
any report
of
parlia-
of
them
is
leged.
And
reports
mentary proceedings were only published in and trembling as " Debates in the Senate of Lilliput," with the names of the speakers
fear
disguised.
man's Magazine,
had
interest "
with the
gain admittance for himself and his assisto ants. They took down the names of the successive speakers, the order in
which they
rose,
their arguments.
This
Johnson,
150
composed the reports which appeared in He himself was the Gentleman' s Magazine. And I never inside the House but once.
am
Whig dogs should not have the You cannot rely on the absolute
cited
Cave was
Lords
and
all
But
his
in
reports
now
took the
from an M.P. to a friend in After 1752 they were avowedly the country. printed as reports but still only the initials As late as 1801 of the speakers were given. the printer and publisher of the Morning Herald was committed to the custody of Black Bod for publishing an account of a debate in the House of Lords but then such account was expressly declared to be " a scandalous misrepresentation " of what had really occurred. And the Standing Orders gradually became obsolete. Still they were form of
letters
;
not revoked.
And
was
PRIVILEGED REPORTS
151
proposed to confer privilege on reports of its proceedings. In 1843 Lord Campbell introduced into the House of Lords his famous
Libel
Bill,
in the statute
book as 6
&
7 Vict.
c.
96.
By
clause 7 of
proceeding, civil or criminal, should be maintainable for a faithful report of any proceedings in either
House of Parliament
opposed
this
at
which
strangers
to be present.
clause,
Lord
Brougham
and
was struck out. Again, in 1858, Davison v. Duncan (see post, p. Lord Campbell introduced 154), another Bill into the House of Lords by which he proposed to protect fair reports of certain public meetings, and also all
eventually
after the decision in
faithful
reports
of parliamentary debates at
which strangers had been permitted to be present. Lord Cranworth supported the proposal but Lords Lyndhurst, Wensleydale, and Chelmsford opposed it, and the Bill was thrown out. Then in 1867 began the famous case of Wason v. Walter. Mr. Wason, the plaintiff, had induced Earl Russell to present to the House of Lords a petition, charging the
;
152
newly
having,
Lord
Chief
Baron
a
with
state-
years
his
ment
to
in order
House of Com-
mons, and praying for inquiry and the removal of that eminent judge from his office if the
charge was found to be true.
The
presenta-
February 1867 led of course to a stirringdebate, in which the charge made against Sir Fitzroy Kelly was entirely refuted, and some very severe observations were made about the
plaintiff's conduct.
re-
And
then
man who by
his
own
act
had caused
Times for reporting accurately what the Lords had said about the matter, into which he had prayed them to inquire. It was a monstrous and a vexatious action but it led to the welcome decision that reports of parliamentary proceedings stand on the same footing as reports of judicial proceedings, and are privileged to the same extent the advantage of
;
such publicity to the community at large outweighing any injury to a private individual
which
may
result
And
PRIVILEGED REPORTS
in the very valuable
153
delivered
by
Sir
Alexander Cockburn,
:
" Whatever disadvantages attach to a system of unwritten law, and of these we %re fully sensible, it has at least this advantage, that its elasticity enables those who administer it to adapt it to the varying conditions of society, and to the requirements and habits of the age in which we live, so as to avoid the inconsistencies and injustice which arise when the law is no longer in harmony with the wants and usages and interests of the generation to which it is immediately applied. Our law of libel has, in many respects, only gradually developed itself into anything like a satis-
factory and settled form. The full liberty of public writers to comment on the conduct and motives of
public
nised.
officers
men
ment, on judges and other public functionaries, are now made every day, which half a century ago would have been the subject of actions or ex officio informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change 1
Well,
it
was
when we remember that Parliament had twice refused to make the change themselves. Everybody welcomed the decision. I myself rejoice But I doubt whether the Court had at it. It is a very strictly the power so to decide.
154
common
many eminent judges had thought the contrary It is true that there was no express decision on the point. Still it was a bold step to take. It was judge-made law. And I venture to think that such a change should be made by the Legislature, and not by the judges as indeed has been done in
!
but
I for
etc.
But
at
common law no
This
was decided in two important cases Davison v. Duncan, 1857, 7 E. & B. 229, and Popham v. Pickburn,
privileged.
1862, 7 H.
&
N.
891.
Hence,
if
news-
paper published an accurate report of a speech made at a political meeting, or at the meeting of any Vestry or Board of Guardians, the
proprietor
was
liable in
damages
if
that speech
PRIVILEGED REPORTS
155
contained defamatory matter which he could not prove to be literally true. No privilege at
all
at such a meetino-.
by the
1877.
case of
Pur cell
v.
Soivler,
which was
of
which was admitted to be accurate, of the proceedings at a meeting of the Board of Guardians for the Altrincham Poor Law Union. At that meeting serious charges were made against the plaintiff, who was the medical officer of the Union Workhouse at Knutsford, of neglecting his duties, and refusing to attend pauper patients when called for. These charges proved to be utterly unfounded and they were
a report,
;
made
plaintiff,
with-
Mr.
was that the matter was one of public interest, and that it was his duty to report what actually occurred at that meeting The for the information of the ratepayers.
jury, however, found a verdict for the plaintiff
for forty shillings,
which carried
costs.
Mr.
Sowler appealed.
The Court
of
Appeal held
156
poor law and the treatment of the paupers, in each union district, was clearly a matter of
public interest in that locality.
had no notice of the charges made against him, the Board of Guardians ought not to have
discussed the matter at that meeting, or at
all
room
the
report,
discretion,
it
and was
parte statements should be published in the local papers. And so the verdict was upheld
(2
CRD.
215).
newspaper world. Here was a report, which was admitted to be accurate, of a discussion that had taken place on a matter of public interest at a meeting of a public body, and yet the proprietor of the newspaper must pay damages, because the editor had not cut out certain passages which in the opinion of the Court should not have been published. It is
in the
PRIVILEGED REPORTS
157
unfounded but then the public ought to be informed that their representatives do make unfounded attacks. Proprietors of
to be wholly
;
newspapers always contend, as Mr. Sowler did in this very case, that in the hurry of setting up the type for a daily paper it is practically
impossible for the editor to read through the
copy and weigh each word it contains that he cannot be expected to edit the report of a public meeting and cut out passages which
;
make the
report incomplete
is
the meeting
and the report printed is fairly accurate, nothing more can be required. But this is a view which the Legislature and the law courts have, so far, steadily refused to adopt and the editor of a paper must edit the whole paper or his employers must take the conse;
quences.
In Recourse was had to the Legislature. introduced a Bill into 1881 Mr. Hutchison the House of Commons, which passed hurriedly
through both Houses, without any adequate it received the Royal discussion in either
;
158
&
45 Vict.
c.
60).
It
contained
some valuable clauses. It created a system of registration by which the public can generally ascertain for a shilling at Somerset House who is responsible for any libel that has appeared
in a newspaper.
this
And
Act
but a very
This
is
limited
privilege,
on
fair
and
public meetings.
the section
" Any report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was for the public benefit provided always, that the protection intended to be afforded by this section shall not be available as a defence in any proceeding, if the plaintiff or prosecutor can show that the defendant has refused to insert in the newspaper in which the report containing the matter complained of appeared a reasonable letter or statement of explanation or contradiction by or on behalf of such plaintiff or prosecutor."
;
You
created
will
see
at
by
this section
guarded.
pro-
PRIVILEGED REPORTS
159
had
" a public
to prove not only that the meeting was meeting " " lawfully convened for a
which rendered this section practically nugatory. It was not enough for the defendant to prove that the meeting was of such a kind that the its proceedings ought to be reported defendant had to satisfy the jury that it was for the public benefit that the libellous words complained of should have appeared in that If the jury thought the report would report. have been as beneficial to the public without the libellous words as with them, all privilege
;
to the
It reported a speech
made
at a public
1885, in the course of which a speaker made a most serious charge against a Manchester
gentleman,
stituency 200
Sotvler,
160
allowed a
the next morning, though, of course, the gentleman libelled was not present at the meeting, and had had no notice of the attack that was going to be made against him. The Court held, on 11th December 1886, that the defendant could claim no privilege unless the jury found as a fact that it was for the public
benefit
that the
actual
libel
complained of
it
was again
laid
down
that
it
In
known accuracy
word uttered
if
at every
disseminated.
tious,
For instance,
anything
be
sedi-
blasphemous, or
obscene
uttered
report.
there, that
PRIVILEGED REPORTS
161
So, too, if
on a public man.
for himself, before
And
such attack
is fair
This, no doubt, imposes on the editor an arduous task, and subjects the proprietor of the paper to serious risk. So Mr. Sowler and
his friends again
On
" fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners authorised to act by letters patent, Act of Parliament, warrant under
162
the Eoyal Sign Manual, or other lawful warrant or authority, select committees of either House of Parliament, justices of the peace in quarter sessions assembled
for administrative or
deliberative purposes,
and the
office or
Government
department,
officer of
state,
commissioner of
police, or
chief constable, of
unless
tion
it
shall
that nothing in this section shall .authorise the publication of any blasphemous or indecent matter Provided also, that the protection intended to be afforded
by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication and has refused or neglected to insert the same Provided further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing, or to protect the publication of any matter not of public concern, and the publication of which is not for the public benefit. For the purposes of this section public meeting shall mean any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted."
:
'
'
This
is
lege afforded
by the former
Act.
It
removes
PRIVILEGED REPORTS
";
it
163
meeting and open to the public the words " lawfully convened,"
the publication
official
it
omits
embraces
of police notices
and other
announcements. But it still, in my opinion, leaves it the duty of the editor to edit all reports of public meetings, and excise every
matter that is " not of public concern and the pubbcation of which is not for the public benefit." And he must remember that while there are many matters which concern the
public in which they take no interest, they
many
which they have no concern. The first case reported under this section was Kelly v. 0' Medley and others, 1889 (6 There the plaintiff enTimes L.E. p. 62). deavoured to address a meeting of dock labourers, called to discuss the Sugar Bounties but he was prevented by a torrent of abusive interruptions from some men who had known him years before at Bristol, and who attended the meeting for the purpose of annoying him and preventing him from speaking. These interruptions were accurately reproduced in the Star newspaper, although they had nothing whatever to do with the Sugar Bounties, but related to matters that had
;
164
left
and
with a strong intimation of his own opinion that they were neither, in which the jury concurred. It has also been decided by
Wills,
J.,
at
Nisi
ordinary
on a
Sunday evening
is
which was than religious had been specially announced by advertisements in the local press (Chaloner v. Lansdoivn and Sons, 1894, 10 Times L.R. 290). But note that this is the only section which affords any protection to a newspaper that
reports the proceedings of a public meeting.
If the defendant claims privilege for
report,
it
this section.
Malice
In
all
qualified;
MALICE
it is
165
open to the plaintiff to endeavour to rebut it by showing that the defendant was actuated by malice. The necessity for proving malice arises as soon as the judge rules that the occasion is privileged, but not before. " Malice does not mean malice in law, a term in pleading, but actual malice ... a wrong feeling in a man's mind. The defendant is not entitled to protection, if he uses the " occasion for some indirect and wrong motive {Clark v. Molyneux, 1877, 3 Q.B.D. at pp. Malice may be proved by extrinsic 246, 247). evidence, showing that there were former disputes or ill-feeling between the parties, or
other libels or slanders published by the de-
and
fendant of the
plaintiff.
Or
it
may
be proved
by
necessary
extent given
to
the
is
publication.
Mere stupidity
nor
is
or forgetfulness
not malice,
want of sound judgment, nor honest indignation. But it is proof positive of malice if the
jury are satisfied that the defendant did not
honestly believe in the truth of the charge he
made
at the time he
made
it.
It
can never
lies.
So
if
the
166
the defend-
a privileged
is
asked to
If
as
character.'
any
the
given,
it
must be such
I
is
do not
to
mean
bound
literally true.
He
need not justify and if he does not, that is no evidence of malice. But if the servant can show that her master, whether from any ill - feeling against her, or from a desire to
retain her in his
character
her a bad
deserved a
good one, that would prove that he was acting maliciously, and all privilege would be lost. So if the plaintiff can satisfy the jury that the
defendant
made
character or her work, not knowing or caring whether they were true or false, such recklessness is evidence of malice. And, indeed, where master and servant have been living under one roof for some years, it is hardly possible for the master not to know of his own know-
M ALICE
is
167
or
is
not clean,
and truthful.
was clean, civil, and would not merely be proof that the words were untrue it would also be evidence
truthful, proof that she
truthful
untrue,
which
is
strong evidence
Such
evidence, therefore,
although no justification
is
pleaded.
be the defendant's duty to make statements about the plaintiff which do not redound to his credit. Such statements should
may
be
made under
the plaintiff as well as with the person who The defendant must asks for the information. be especially careful, if he is merely repeating
something that he has heard, not to heighten he should its colour or exaggerate its import tell his correspondent that he does not know it of his own knowledge, but only by hearsay
; ;
fact.
Above
168
he must honestly believe in the truth of the charge he makes at the time he makes it. And this implies that he must have some ground for the assertion it need not be a conclusive or convincing ground, but no charge
all,
;
should ever be
made
recklessly
even in confidence.
is
And
it
is
this is still
volunteered
there
be
under a strong sense compelled duty which him to take the of unusual course of communicating with the person concerned, before any inquiries were made. Letters which impute crime or misconduct to others must always be written with the
satisfied that
and not with the purpose of obtaining any indirect advantage for the writer. Serious
accusations should not be
;
made
recklessly or
wantonly they must always be warranted by some circumstances reasonably arousing suspicion. And they must not be made unnecessarily to persons whom they do not concern, nor before more persons, nor in
MALICE
169
And
even
who has
still
the jury
may
acted
maliciously,
he
eagerly
seized
on
some slight and frivolous matter and without any inquiry into the merits, without even
satisfying
of the
matter that had reached him was correct, hastily concluded that he had discovered a great public scandal which called for the immediate intervention of the officers of the
State.
necessary to
make
common with
others.
In the
first
place,
And
this involves that he must have some ground "The jury may for making such a claim. probable cause, absence of the from infer malice
The want but they are not bound to do so. necessarily lead to does not of probable cause an inference of malice" (per Maule, J., "in
Pater
v.
Baker, 3 C.B. at
p.
868).
Next, in
170
claim
made by
must
seldom necessary in self-defence impute evil motives to others, or to charge your adversary with dishonesty or fraud. If, therefore, in writing or speaking on a priviclaim.
to
excess
may
Still, if
conduct to be such as he described it, the mere fact that he used strong words in so describing it is no evidence of malice to go
plaintiff's
to the jury.
The
test
appears to be this
the
facts
take
as
they
appeared to the defendant's mind at the time of publication, and then ask themselves whether
the terms used are such as the defendant might
have honestly employed under the circumIf so, the strength of his language ? points to bona fides rather than to malice. It is not enough that the expressions are angry, the jury must go further and see that they
stances
ar'e
malicious.
"
The
particular expressions
ought not to be too strictly scrutinised, provided the intention of the defendant was
MALICE
171
good " (per Alderson, B., in Woodward v. Lander, 6 C. & P. 550). " A man may use excessive language, and yet have no malice in his mind" (per Lord Esher, M.R., 1895, 2
Q.B. at
p.
170).
an example the case of Spill v. There the defendant was a creditor of the plaintiff's and apas
Take
Maule
affairs of
the plaintiff's
He
to the
learned
had
amount
and dishonest
and
was
Chamber that the occasion was privileged, and that there was no evidence of malice. The words were strong, no doubt yet, when taken in connection with the
the Exchequer
:
they were such as might have been used honestly and bona fide by the defendant; the
facts,
conduct in removing the bills during the winding-up was equivocal and might well be supposed by the defendant to be such as he
plaintiff's
described
it.
172
malice
The burden
;
of
proving malice lies on the plaintiff and whenever the only evidence relied on for this purpose is as consistent with bona fides as
case.
Damages
If,
words defamatory of the plaintiff on an occasion of qualified privilege, then the only question
left
for
them
fix
is
to decide
is,
?
shall
we
the damages
damages
in
will
an action of
satisfied that
that
Of course, if the plaintiff has suffered any special damage (i.e. any special pecuniary loss caused directly by the libel) he should
prove this at the
fop strictly
it
trial (if it
has
been pleaded).
is
no
special
damage
still
entitled
to
DAMAGES
173
recover general damages for the injury done to his reputation. And the amount awarded
for
may
be substantial,
although the plaintiff cannot prove that he has suffered any pecuniary loss in consequence
of the
libel.
For
in
an action of
libel "
the
damages are not limited to the amount of pecuniary loss which the plaintiff is able to prove" {per curiam in Davis v. Shepstone, 11 App. Cas. at p. 191). "The jury in assessing damages are entitled to look at the
whole conduct of the defendant from the time the libel was published down to the time they
give their verdict.
his
conduct
has
in
before
action,
trial "
after
action,
and
(per
55).
Praed
damages awarded depends in large measure upon the line of defence adopted by the
defendant at the
persists right
trial.
If,
for
instance, he
up
to the
libel
mark
their
such conduct by awarding heavy damages against him. In some cases, too, the learned judge will, if asked, grant an injunction
174
the
libel.
Costs
Lastly comes the all-important question of
costs.
An
if
in
the
by
consent.
Hence
plaintiff for
small, he will recover the whole of his costs of the action, " unless the judge by whom such
action
is
tried, or
cause
otherwise order"
"
(Order LXV.,
r.
1).
cause "
an action of
libel
contemptuous
damages (e.g. only a farthing or a shilling), was of itself evidence that the action ought not to have been brought, and therefore (prima facie at all events) "good cause" for depriving the plaintiff of costs. But the majority of the Court of Appeal (Lord Esher, M.B., and A. L. Smith, L.J.) thought otherwise. They decided that the smallness of the
COSTS
175
damages recovered could not of itself prevent the costs from following the event because the verdict, however small, is the event which the costs are to follow. If,
of
;
amount
bona fide to clear his character from an imputation, but allows his name to be used
for the
conduct in such cases good cause exists which a judge might well in the exercise of
discretion deprive the plaintiff of costs.
for
his
See
O'Connor
146.
v.
Here then we must leave the civil action In my confor damages for defamation. take a hasty glance cluding lecture we must at the criminal law of libel.
VI
CRIMINAL
I
LAW
different
To
write
and publish a libel is a crime. Merely to speak defamatory words of a private individual may be an actionable wrong, but is no crime.
Why
is
this
The
is, it is
It is
and a crime somewhat accidental character. not based on any clear logical principle,
distinction between a tort
true, of a
its
explanation in history.
At
have been
criminal,
regarded either
day.
tortious
or
as
Many
acts are
now
criminal in England
jurisdiction.
which were formerly matters of purely civil In Roman Law theft was a tort but we consider it a crime. The Romans
vi
CRIMINAL LAW
;
177
in English
law
Writers on jurisprudence
is
us that a crime
But
am
you were being murdered, you would think that murder at all events was a crime which directly affected the
saying that.
fancy that
if
individual.
Other
writers
lies
say
that
in
the the
is
substantial
distinction
:
rather
remedy pursued
offender
in the
;
when
is
when
it
a tort, the
remedy
is left
may
Well, I
either.
am
are
events
always "private prosecutions"; and indeed it is seldom that the State initiates
:
any criminal proceedings of its own accord it generally waits for some individual to set it Perhaps the most accurate way of in motion. The object stating the distinction is this
:
of
criminal
proceedings
is
to
punish the
to
offender
offence
;
repetition of the
is
178
VI
compensate the person injured by giving him The State pursues the former damages. object, independently of any action taken by
the individual, and with that object
it
declares
which
safety.
is
Now
the State
all
is
obviously interested in
repressing
such
libels
and lampoons
as are
any other reason tend to disturb Hence the civil order and harmony of society. it is a misdemeanour punishable with fine and imprisonment to write and publish defamatory words of any living person, or to exhibit any
or
which
for
calculated to
to
The attempt
A libel on a thing is no crime and wherever no action would lie without proof of special damage, no indictment or information can be preferred. For it is improbable that Mr. Mellin would be provoked to blows if a rival manufacturer disparaged his " Food for infants." It is no
is
:
vi
CRIMINAL LAW
179
crime to utter
maliciously.
But you
me a liar to my face, I am more likely to knock him down than if he wrote that offensive expression from a safe distance in a
calls
letter."
no doubt. I told you just was now impossible to draw the line between tort and crime with any strict logical The State has thought fit to say precision. that a libel shall be both a tort and a crime,
is
That
true,
that
it
while
I
it
has
left
is
And
think this
right,
even
if
as likely to
so
is
extensive,
so
they set
pernicious,
Once a thing is printed, you never know into whose hands it may come. It may turn up years hence and be " Here used against you behind your back.
for the public good.
it
is
in print."
And
so
many
they
foolish people
will
believe
anything
see
in
print.
180
vi
They
more
moment
of
permanent and
and
in spite of gossipers
is
as a libel in a newspaper.
Anyhow,
it is
the
law of England that a slander on a private individual is a tort and not a crime, while a libel on a private individual is both a tort and
a crime.
The person
If he
will
is
libelled is
or
But
blame him.
repression
should be a
remedy as well. Libellers are often penniless, and a civil action therefore has no terrors for them. The plaintiff will never get his damages. I believe it is a fact, though I
criminal
action
being
He
regards
degenerate days.
Hence the
civil
remedy
for
is
not by
public.
itself
a sufficient
protection
the
vi
CRIMINAL LAW
181
But though it is right that there should be a criminal remedy for libel, I do not know any reason why there should be two criminal
libelled
As the law stands now, the person can in some cases proceed either by way of indictment or by criminal informaremedies.
tion.
has,
Duke
except
of Vallombrosa,
is
of State.
So
and pleading. The State intervenes in the interests of public peace and order to protect our reputations from wanton and malicious attacks.
It follows, therefore,
libel is
a
an.
in
repressing.
R.
v.
Labouchere, which
have just
cited,
182
vi
and
Wood
v.
Cox, 4 Times
L.R. at
654, that
criminal prosecution ought not to be instituted unless the offence be such as can be reasonably construed as calculated to disturb the peace of the community. In such a case the public prosecutor has'to
"A
community in the person of an individual. But private character should be vindicated in an action for libel, and an indictment for libel is only
protect the
justified
when
it
affects
While therefore criminal proceedings will not lie in every case in which a civil action can be brought, so on the other hand the criminal remedy for libel is in some cases more extensive than the civil.
You
there
may
be
many
libels
the circulation of
which would be a danger to the State, and which yet might afford no ground for an
action
for
damages.
Thus,
it
is
misde-
meanour to libel any sect, company, or class of men, wfeput mentioning any person in particular provided it be alleged and proved
;
all
and conduces to a breach of the peace. Thus where the defendant published in his newspaper a libel on all the nuns in a
vi
CRIMINAL LAW
183
taken and the defendant was convicted Gathercote, 1838, 2 Lewin, C.C. 237).
the aspersion
all
(it!,
v.
But
was
in
cast
the nuns
singled out
In an earlier case, R. v. Osboru, 1732, 2 Barnard. 138, 16-6, the defendant published a sensational
and then living near Broad Street. They were said to have burnt a woman and a new-born baby alive, because Certain Jews who its father was a Christian. had recently arrived from Portugal, and who then lived in Broad Street, were in consequence attacked by the mob, barbarously Crimhandled, and their lives endangered. inal proceedings were at once commenced The objection was against the defendant.
arrived from Portugal
raised that
it
who
damages could
there-
fore have been brought for want of a proper But the Court held that it was plaintiff.
wholly immaterial
whether
civil
action
184
vi
would
formation
for
have been a
suppressed.
riot, if
may
be taken
if the defendant has been mean enough to publish defamatory words about a man who is dead, provided the obvious tendency of such words is to provoke his family to a breach of
the peace
(R
just
v.
126).
from the point of view of the as pernicious as a libel on a living man, who might take the law into his own hands and chastise the offender himself. But of course no civil action can be brought for a libel on a dead man. This was decided not long ago in India. The defendant was
Such a
libel,
State,
is
Hindoo chieftain, Premji Ludha, the headman of the Karad caste, and there, before a large concourse of
present at the funeral of a
people,
made
and
deceased, de-
claring that he
opprobrium
" palit," a
term of great
among Hindoos.
said,
Many
and the
VI
CRIMINAL LAW
185
family of the deceased suffered great pain and annoyance, and were much lowered in the estimation of the public. The plaintiff sued
as the heir
for
and nearest
damages, but he was not allowed to recover any. That is the decision in the case of
Luckumsey Roivji v. Hurbun Nursey and Bombay, 580. But in England, had such words been written, an indictment would have lain, as they clearly tended
others, I.L.R. 5
to provoke a breach of the peace. It is not necessary to prove that a breach of the peace was actually committed still less that the
;
intended or desired that an assault should ensue that is probably the last thing
libeller
:
that he wished
effect of
for.
It is
is
enough
if
the natural
the words
to vilify the
memory
of
But
in Cardiff
1886 an assault did actually follow on the publication of such a libel. In 1883 a Mr.
Batchelor died,
who had
which now stands in one of the public spaces in the town of Cardiff. Thereupon the Western
186
vi
had
as a rule espoused the opposite cause to that advocated by the deceased in various
municipal and political matters, thought fit to publish a sarcastic epitaph for the proposed
statue.
following
:
suggested
epitaph
for
the
sends us Batchelor
statue "
'
In honour of John Batchelor, a native of Newport, who in early life left his country for his country's good ; who on his return devoted his life and energies to setting class against class a traitor to the Crown, a reviler of the aristocracy, a hater of the clergy, a panderer to the multitude ; who, as first Chairman of the Cardiff School Board, squandered funds to which he did not contribute who is sincerely mourned by unpaid creditors to the amount of 50,000 who, at the close of a wasted and misspent life, died a pauper
; ; ;
is
this
erected
anything.'
him.
that,
he
in
indicted
him
for libel.
Walter
vi
CRIMINAL LAW
187
lay.
directed the
v.
petty jury to
defendant (R.
The
is
to
compensate the person libelled for the injury done to his reputation by the defendant's
words.
in
But criminal proceedings are brought the interests of the community, in order to
libels
which tend
instance,
have made it clear to you that in civil damages the plaintiff must prove a publication to some third person as without that there is no injury done to his reputation, and nothing therefore for which he can claim
trust I
actions for
compensation.
or not.
But
it
calculated
it
must be
stopped.
Now,
it
person
whom
indeed
much
as
it is
188
vi
Hence, in criminal
R.
v.
Adams,
1888,
22 Q.B.D. 66).
for
It
is
he
is
not claiming
any compensation for himself, but only seeking to promote the interests of the public. For the same reason it is no answer to
criminal proceedings for the defendant to prove
he must go and show that it was for the public benefit that such words should be published otherwise there is no countervailing advantage to compensate the public for the risk of a Indeed, at common law breach of the peace. defendant was not allowed in any case to the prove in a criminal trial that his words were true. It was a complete answer to a claim for damages but it was no defence to a prosecution, for it was thought that the very fact that his words were true would render it more probable that a breach of the peace would
that his words are literally true
further,
;
;
follow the publication. This is what is meant " by the old maxim, The greater the truth, the
vi
CRIMINAL LAW
189
made by
for
Lis
its
proper
and the reduction, though an unkind, was not a wrongful, act. But in criminal
the words were true was regarded as wholly
irrelevant.
No
;
admissible
an aggravation of the original are many occasions on offence. which it is desirable that the whole truth should be made known, and to this extent the law has been altered by sec. 6 of Lord CampTo any indictment for a libel bell's Act, 1843.
was regarded
Still
there
on a private individual, the defendant is now allowed to plead that his words are true, provided he adds that it was for the public benefit that his words should have been published.
But
it
still
all
cases of
blasphemous or seditious
received.
that no evidence
Thus
190
vi
it
was the
ceedings
and
a good
is
that
a master
liable
acts
of his
pursuance of the This master's orders, expressed or implied. rule pressed very hardly on the proprietor of a
servant's
in
employment and
newspaper.
permitted a
the
He was
libel
Thus,
in the country
and left the management of the Times entirely to his son, with whose discretion
The son
on the late Earl Cowper to appear in the columns of the Times, and the
allowed a
father
libel
was prosecuted and convicted, Lord Kenyon, C.J., holding that he was clearly
" answerable, criminally as well as civilly, for
v.
Walter, 1799,
Hence Lord Campbell inserted in his Act a (now the 7th section) which enables the proprietor of a newspaper in which a libel has
clause
inadvertently
publication
appeared
to
authority,
vi
CRIMINAL LAW
191
consent, or knowledge,
arise
from Such
to an indictment, no defence to a claim for damages. But this section of Lord Campbell's Act afforded no protection to the reporter or
now an answer
is
though
it
still
who actually set up the type. Accordingly in 1881a provision was inserted in the Newspaper
Libel
for
the
further
It declared
that
Xo
or
published therein, without the written fiat or allowance of the Director of Public Prosecutions in England or Her Majesty's Attorney-General in Ireland
being
first
was found not to work to the I do not satisfaction of the newspaper world. know anything about Her Majesty's Attorney-
But
this clause
General in Ireland, but the Director of Public Prosecutions in England got into the way of
granting his fiat whenever he was satisfied that the publication to which his attention
libel
and
it
was not
his
192
vt
the matter
terms
for
criminal
editor or
naming him.
This
had
but
the
two
sit
do not know how it is, to be none of our modern law reforms answer on There always have to be first attempt. I think perhaps it is bites at the cherry
altered.
I
!
Commons
up too
late at night.
Bill was before the House of Lords in 1888, the late Lord Chief Justice of England introduced the following clause, which is now section 8 of the Act
Law
of Libel
Amendment
"
any
publisher, editor, or
sponsible for the publication of a newspaper for any libel published therein without the order of a Judge at
Chambers being
tion shall be
shall
first
Such applica-
made on
who
application."
It is
found in
much more
difficult to
obtain an order
under it from a Judge at Chambers than it was in former days to obtain the^a^ of the Public Prosecutor a result which the late Lord Coleridge probably contemplated and desired.
vi
CRIMINAL
LAW
193
And, apart from any apprehension of a breach of the peace, there are other occasions
on which
publications
the
State
interferes
to
suppress
which
are
obviously
misdemeanour to speak, or to write and publish, any profane words vilifying or ridiculing God, Jesus Christ, the Holy Ghost, the Old or New Testament, or Christianity in general, with intent to shock and insult
a
believers, or to pervert or mislead the ignorant
and unwary.
element
in
This
intent
v
is
an essential
the crime.
For, as
judgment in R. v. Ramsey and Foote, 1883, 15 Cox, C.C. 231, heresy in this 48 L.T. 739 A man may hold any country is no crime. opinions on religious matters which commend
;
themselves to his intellect or his conscience. And he may fearlessly avow any opinions
which he conscientiously entertains. But he may not wound or insult the religious feelings
of others
by irreverently
scoffing
at
sacred
things.
So with obscene publications. It is a misdemeanour to publish obscene or immoral Moreover, by the 20 & 21 books or pictures.
194
vi
Vict.
may
issue
and bring before them, obscene and then to serve a books and pictures summons on their owner, on the hearing of which the justices may order such books or
for,
seize,
pictures to be destroyed.
seditious words.
It is therefore a mis-
demeanour to speak or to write and publish any words which tend to bring into hatred or contempt the sovereign, or his ministers, or the government and constitution of the realm, or either House of Parliament, or the Courts of
Justice, or to excite his Majesty's subjects to
attempt the alteration of any matter in Church or State otherwise than by lawful means. But where there is no intent to create disaffection
or
to disturb
utmost latitude
all
is
public
"
affairs.
fair
of public
interest is of course
R.
v.
no crime. The power Lord Kenyon, C.J., Reeves, 1796, Peake, Add. C. 86, "is
.
.
vi
CRIMINAL LAW
195
dealt with."
discuss
complain of"
Collins,
nalist
in
R.
v.
1839, 9
&
P.
461).
"A
jour-
may
Government and their policy and indeed it is duty" (per Fitzgerald, J., in R. v. A. M. Sullivan and others, 1868, 11 Cox C.C. 54). There are old cases which appear to go farther, and to decide that any publication
his
tending to beget an
ill
libel. Lord Holt, C.J., "If persons should not be called to account for possessing the people with an ill opinion of the Government, no Government can
is
ment
a criminal
said in 1704,
Governments that the people should have a good And Lord Ellenborough, C.J., opinion of it."
subsist
;
for. all
R.
v.
49), " It
if
a publica-
by
ridicule
is
...
it
is
a crime."
If this
to
be taken literally,
all
Opposition newspapers
196
vi
commit that crime every day. Such a doctrine, if strictly enforced, would destroy all liberty of
the press.
It
is,
August 1819.
by
another.
is
And
of such arguments
now
and to alienate
from them the affections of the people. I think, however, that Lord Holt's words must not be taken strictly in their modern signification
:
we must
to the times in
which he
lived.
He
clearly
was not referring to a quiet change of ministry which in no way shakes the throne, or loosens the reins of order and government. In 1704
the present system of party-government was not in vogue; it was barely conceived by
William
III.,
And even
in
vi
CRIMINAL LAW
197
Lord Ellenborough's time the ministry were still appointed by the king and not by the people. By "the Government" both judges
meant, not so
much a particular
set of ministers,
system settled by the Constitution, the general order and discipline of the
realm.
as the political
"To
is
the
phrase employed in the earlier case of R. v. Beere, 12 Mod. 221 Holt, 422 and to Lord
; ;
mind the Government meant bringing in the Pretender, to Lord Ellenborough's it meant the introduction of Jacobinism and Red Republicanism from France not the mere substitution of one Prime Minister
Holt's
:
" subverting
for another.
One
seditious
"
notice.
The
contempt of Court," with fine or imprisonUnder this term are included all insulting attacks on the judges or the officers of the Court, and also all adverse comments
ment.
published while the proceedings are pending, abusing either of the parties or his witnesses before the cause can be heard on its merits.
Latterly the tendency of our Courts has been
to
discourage
all
198
vi
where only a technical contempt of Court has been committed, which did no real harm to the complainant. But any deliberate attempt
to prejudice the
plaintiff or his
mind
witnesses,
trial I
to
prevent or
will
obstruct
the fair
of
the action,
was counsel recently in such a case The Birmingham Vinegar Brewery Company v. Henry, 1894, 10 Times
certainly be punished.
:
There the plaintiffs, who were vinegar manufacturers, complained of a libellous article which had appeared in the defendant's
L.E.
586.
supplied by the plaintiffs as and alleged that a shopkeeper at Bridlington had been prosecuted under the Adulteration Act and convicted for selling it as pure malt vinegar. As a matter of fact, however, the shopkeeper at Bridlington had been acquitted three analysts from Somerset House having certified that the vinegar in question was pure malt vinegar. While the action was still pending, the defendant
the
vinegar
impure,
article, fiercely
VI
CRIMINAL LAW
199
"Their ignorance, however, not only enabled the vendors to escape punishment, but gave the manufacturers of the alleged pure malt vinegar an opportunity of issuing lying circulars to grocers everywhere throughout the Kingdom, alleging their vinegar to be pure malt vinegar, which it most certainly is not."
It
was
clear
were the persons referred to as " the manufacturers of the alleged pure malt vinegar." It will be observed that this article repeated the libel sued on it reasserted that
plaintiffs
;
the
plaintiffs'
vinegar was
alone
not
not
pure
malt
amount to contempt of Court (Cronmire v. The Daily Bourse, Limited, 9 Times L.R. 101). But the article complained of went further it attacked
;
vinegar.
This
may
the witnesses
whom
had a committal been pressed for, they would have sent the defendant to prison. As my clients did not insist on this, the Court ordered the defendant to pay the costs of the motion as between solicitor and client, to enter
;
200
vi
by
articles in
and to stop
issue
all
particular
of
which
of
the
are
plaintiffs
complained.
Such
punished
;
contempts
Court
rightly
and
words which
But,
and
disorder.
news-
no doubt, the printingpress was regarded with apprehension, and deemed a danger to the State. The king endeavoured to restrict the number of presses and to keep them all in safe hands. Then a Censor was appointed, and no one might print (or, later, publish) a book without his Imprimatur. This censorship continued till
first,
At
But
necessary
;
will
any man may publish what he but he must be prepared to take the
if
is
consequences,
what he
Lord
has published
"
The
liberty
of
the
press,"
says
vi
CRIMINAL LAW
v.
201
Mansfield, in R.
1784, 3
^
law."
"
which twelve of
blamable
publish any things countrymen think is not {per Lord Kenyon in R. v. Cuthell,
his
"
A man may
deemed one
in a criminal case.
judge rather than the jury The jury found the fact
of publication, and then the judge decided whether the words were libellous or not. But Mr. Fox's Act (32 Geo. III. c. 60) put a stop
and restored the earlier criminal law, by which the practice in civil and criminal that the question cases was identical, viz. The of libel or no libel was for the jury. judge should explain to them what a libel is he may state for their guidance what his own opinion is of the document before him but
to this,
the
ultimate decision
of the question
rests
202
vi
with one
excep-
There
seems
one of our institutions which absolute impunity, It has no the law of the land.
is
It was not always so Our ancestors were familiar with they were the law under which they lived
in England.
And with whole world for to them the good reason came for lessons in the law of freedom. My endeavour throughout these lectures has been so far as possible to get down to those broad common -sense principles which underlie our whole law. Conscious as I am of the lack of form and of the defects of expression which mar our law, yet this I will say the law of England, when once you find, out what it is, is a better law and a more enlightened law than any other system which the world has ever seen. I have endeavoured to make clear to you what in its essence our law of libel is and I hope and trust that if any one hereafter should in your presence abuse this branch of our law, you will do your best to remove from his mind that ignorance which causes
fond of
it
;
it.
vi
CRIMINAL LAW
203
though it does not excuse such misconception, and to convince him that on this point as on all others the law of England, when accurately ascertained, is always sensible and
just.
LIBEL
be libellous, words must be Written or printed or otherwise permanent, A picture, an effigy, or a statue may be a libel (Monson v. Tussauds, Limited, 1894, 1 Q.B. 671). Words will be actionable if written or printed and published, which would not be actionable if merely spoken. This distinction between libel and slander is now too well established to be ever shaken (Thorley v. Lord Kern/, 1812, 4 Taunt. 355). i.e. they must (ii.) They must also be defamatory have injured the reputation of some person, " have made people think worse of him." And that person must be the plaintiff (Australian Newspaper Company, Limited v. Bennett, 1894, A.C. 284). Words are not defamatory in this sense, if they merely depreciate some thing, or impugn the plaintiffs title to some
(i.)
:
To
property. Trade-libel
verbal,
is a statement, whether written or which does not attack a man's moral character,
206
vate or professional reputation, but which has in fact injured his business and caused him pecuniary loss in the way of his trade (Batclife v. Evans, 1892, 2 Q.B.
524). " Slander of Title "
is
to include all statements, whether written or spoken, which impeach a man's title to any property, real or
personal.
7 71).
tion (Hatchard v.
Such words clearly do not affect his reputaMege and others, 1887, 18 Q.B.D.
In cases of Trade-libel and Slander of Title, the must prove (a) malice, (b) that the words are false, (c) that they have caused him special damage otherwise he can obtain neither damages nor an inBut in an junction (White v. Mellin, 1895, A.C. 154). ordinary action of libel, when the words are defamatory of some individual, he need prove none of these things ; except when the words were published on a privileged occasion, and then he must prove malice. A corporation or company may sue for any words which affect its property, or injure its trade or business (South Hetton Coal Company, Limited v. North-Eastern News Association, Limited, 1894, 1 Q.B. 133). But it cannot bring an action in respect of any words which impute to it conduct of which a corporation physically cannot be guilty ; such as murder or corruption (Metropolitan Omnibus. Company v. Hawkins, 1859, 4 H. & N. at p. 90). Nor can it sue for any words which are a libel or a slander, not on it, but on its members individually unless, indeed, special damage has thereby been caused to it (Mayor, etc., of Manchester v. Williams, 1891, 1 Q.B. 94). (iii.) Lastly, to be actionable the defamatory words must be published by the defendant to some person
plaintiff
207
other than the plaintiff. Merely composing a libel is not actionable, unless it be published. And no cause of action arises if the words are only communicated to the person defamed for that does not injure his repu:
tation.
plaintiff's
wife
is
sufficient
(JVenman v. Ash, 1853, 13 C.B. 836; 22 L.J. C.P. 190; Jones v. Williams, 1885, 1 Times L.R. 572). But a publication by the defendant to his own wife is not (Wennhak v. Morgan, 1888, 20 Q.B.D. 635). If a man desires and intends, and does all in his power, to publish defamatory words, and yet they never reach the eyes of any one except the plaintiff himself, no action lies. On the other hand, if a man
unintentionally or accidentally publishes defamatory words to a third person, an action will lie, unless he can satisfy the jury that he was guilty of no negligence
in the matter. Thus, the sale of every written or printed copy of a libel is prima facie an actionable publication. But if the defendant is a newsvendor who neither wrote nor printed the libel but merely sold the newspaper containing it in the ordinary way of his business, and who neither knew nor ought to have known that that newspaper did contain or was likely to contain any libellous matter, he will not be deemed to have published the libel which he thus innocently disseminated (Emmens v. Pottle, 1885, 16 Q.B.D.
354).
a prima facie cause of he proves that the defendant has published to some third person written or printed words which have injured the reputation of the plaintiff.
plaintiff, then, establishes
if
action
208
II
way
Every the special privilege of the press. freedom to speak and to write on such
matters.
therefore is not, strictly speaking, a Legitimate criticism is no tort should loss ensue to the plaintiff, it would be damnum sine injuria(Merivale and Wife v. Carson, 1887, 20 Q.B.D. 275). " It is only when the writer goes beyond the limits of a fair comment that his criticism passes into the region of libel at all " (1894, 1 Q.B. at p. 143). True criticism differs from defamation thus (1) Criticism deals only with such things as invite public attention, or call for public comment. It does not follow a public man into his private life, or pry into his domestic concerns. (2) Criticism never attacks the individual, but only his work. A true critic never indulges in personalities, or recklessly imputes dishonourable motives, but confines himself to the merits of the subject-matter before him. (3) The critic never takes advantage of the occasion to gratify private malice, or to attain any other object beyond the fair discussion of matters of public interest,
This
right
privilege.
209
and the judicious guidance of the public taste. He will carefully examine the production before him, and then honestly and fearlessly state his true opinion
of
it.
So in cases
of Fair
Comment,
defendant from
liability,
(a) the words published must be fairly relevant to some matter of public interest (b) they must be the expression of an opinion, and
the
limits
of
fair
comment
(d) (a)
is or is not one of public interest is a question for the Court (per The public conLopes, L.J., 1894, 1 Q.B. at p. 143). duct of every public man is a matter of public concern. So is the management of every public institution ; the conduct of every public body, imperial, local or municipal ; the administration of the poor law in any locality ; and the sanitary condition of any populous district (South Hetton Coal Company, Limited v. NorthEastern News Association, Limited, 1894, 1 Q.B. 133).
So are
All affairs of state Parmiter v. Coupland, 1840, 6 M. & W. 105. Seymour v. Butterworth, 1862, 3 F. & F. 372. Wason v. Walter, 1868, L.R. 4 Q.B. 73.
The administration
over;
is
Birmingham
v.
Henry,
The management
and muni-
210
CRD.
215.
Ecclesiastical affairs
all
Camp. 355,
F. 1107.
n.
&
All public entertainments, theatrical performances, concerts, etc. ; all advertisements and other appeals to the public
Paris
v. Levy,
30 L.J. C.P.
S.
11.
Campbell
v.
Spottiswoode, 1863,
&
769; 32
Morrison v. Belcher, 1863, 3 F. & F. 614. Odger v. Mortimer, 1873, 28 L.T. 472. Davis v. Duncan, 1874, L.R. 9 C.P. 396.
(b) Comment on well-known or admitted facts is a very different thing from the assertion of unsubstan-
comment.
of
"There
is
no doubt that
lawfully be
criticism,
the public
acts
public
man may
made
not
of the public.
But the distinction cannot be too clearly borne in mind between comment or criticism, and allegations
such as that disgraceful acts have been committed or discreditable language used. It is one thing to comment upon or criticise, even with severity, the acknowledged or proved acts of a public man, and quite another to assert that he has been guilty of parof fact
ticular acts of
misconduct" (Davis v. Shepstone, 1886, 11 App. Cas. at p. 190). It is not enough that the writer honestly believed the facts to be as he stated
211
them (Campbell v. Spottiswoode, supra). But sometimes a phrase which when taken by itself appears to assert a fact will be found on studying its context to be really only comment on other facts, or an inference
from them.
The limits of a fair comment are laid down, with possible precision and with due regard to the liberty of the press, in the judgments of the Court of Appeal
(c)
all
in Merivale
v. Carson,
of
carefully read.
(d) The word "fair," in the phrase "a fair comment," refers to the language employed, and not to the mind of the writer. Hence it is possible that a
fair
maliciously.
If
so, it
Ill
212
is not obvious from the words themthe person referred to, or what is the imputation cast upon him, the plaintiff should insert in his pleading an averment (which is called an innuendo)
selves
who
is
make these matters clear. But the innuendo must be such as the words can fairly bear. " As an innuendo cannot make the person certain which was uncertain before, so an innuendo cannot alter the matter or sense of the words themselves" (James v. Rwtlech, 1599, 4 Rep. 17, 6.). " It is for the Court to determine whether the words used are capable of the meaning alleged in the innuendo ; it is for the jury to determine whether that meaning was properly attached to them" (1894, A.C. at p. 287; Mulligan v. Cole, 1875, L.E. 10 Q.B. 549; Nevill v. Fine Arts, etc., Company, Limited, 1895, 2 Q.B. 156).
to
(i.)
need not be named. It is sufficient if the reader can ascertain who he is. A libel on A may in some cases be also a libel on B. A general imputation on a class may yet refer solely or specially to a member of that class (Le Fanu v. Malcolmson, 1848, 1 H.L.C. 637). If the words reflect impartially on either A or B, or on some one of a certain number or class, and there is nothing to show which lone was meant, no one can sue. Where the words reflect on each and every member of a certain number or class, each or all can sue.
libelled
The person
(ii.)
If a defamatory imputation be in fact conveyed to the reader, it does not matter how it was expressed.
213
be hinted or implied, suggested by a question adjective, hidden under a nickname or some ironical phrase. If the words in their natural and obvious meaning are harmless, still a further question may arise Were there any facts known both to writer and reader which would lead the latter to understand the words in a secondary and a defamatory sense ? This is a question for the jury, provided there be any evidence to go to them of such facts, and provided also it is reasonably conceivable that such facts, if proved, would have induced the reader so to understand the words (Capital and Counties Bank v. Henty and Sons, 1880, 5 C.P.D. 514; 7 App. Cas. 741; Russell v. Notmtt, 1896, 12 Times L.E. 195).
or a
may
mere
TEUTH
complete answer to any action of libel (though not a defence in criminal proceedings) for It is the defendant to prove that his words are true. presumed in the plaintiff's favour that all defamatory words are false. The plaintiff therefore need give no
It is a
alone
it is
evidence to show that the words are false it is for the defendant to prove they are true and he will not be allowed to try and prove this, unless he has specially This pleaded in his Defence that the words are true. And the special plea is called a plea of justification. justification must be as broad as the charge, and must justify the precise charge. The defendant cannot plead that he published other words than those set out in the Statement of Claim, and that such other words are So if the true (Rassam v. Budge, 1893, 1 Q.B. 571). said that the plaintiff had libel complained of be, been guilty of fraud, etc.," it is not enough for the
:
"A
said so
he must go further
214
had
in fact
been guilty of
It will be sufficient, however, if the defendant can prove that every imputation contained in the libel is A slight inaccuracy as to some substantially true. detail will not prevent his succeeding, if such inaccuracy But in no way alters the character of the imputation. if the words which the defendant cannot prove to be true are a material aggravation of the main imputation, or insinuate some further charge in addition to it, the The test always plaintiff will be entitled to a verdict. is, Did the libel as published have a different effect on
the*
mind
of
not be a bar the whole libel, still, the defendant is sometimes allowed, in mitigation of damages, to justify part only, provided such part contains a distinct imputation which can be separated from the rest. So he may sometimes justify as to one portion, and plead privilege or fair comment to the rest, provided the portion justified be fairly severable from the rest. To be fairly severable, it must be intelligible by itself, and must convey a distinct and separate imputation against the plaintiff (Davis v. Billing, 1891, 8 Times L.R. 58). Where the words are laid withlan innuendo in the Statement of Claim, the defendant may justify the words, either with or without the meaning alleged in such innuendo (Watkin v. Hall, 1868, L.R. 3 Q.B. 396). But the defendant must always make it quite clear in his pleading how much he justifies, and how much he does not (Fleming v. Dollar, .1889, 23 Q.B.D. 388).
of justification will
it
Although a plea
justifies
215
IV
PRIVILEGE
There are occasions on which it is a man's duty to and frankly, without thought or fear of consequences. To some of such occasions due regard for the public service or the administration of justice requires that an absolute privilege should attach, and a complete immunity be afforded to the writer no action against him is permitted, even though it be alleged that he knew his words to be false and wrote them with deliberate spite. There are not many such occasions, and the Courts will not increase the number (5 Ex. D. at p. 55). There is, however, a much larger class of occasions on which the privilege is a qualified one occasions on which it is the right or duty of the defendant to state what he honestly believes to be the truth about the plaintiff, but on which the interests of society do not require that he should In such cases the be freed from all responsibility. plaintiff will recover damages in spite of the privilege, if he can prove that the defendant did not act in good faith, but was actuated by some improper motive in This improper motive is called writing as he did. malice. It is for the defendant to satisfy the judge
state his real opinion fully
:
is
privileged
when
this is done, it is
Absolute Privilege
1.
Parliamentary Proceedings.
petition to Parlia-
ment, or to a committee of either House, is absolutely privileged, although it contain false and defamatory
216
So is all evidence presented to a committee of either House (Goffin v. Donnelly, 1881, 6 Q.B.D. 307). Parliamentary papers published by the authority of either House are protected by a special statute, the 3 & 4 Vict. c. 9. Proceedings. 2. Judicial No action lies against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceedings before any Court recognised by law. See as to judges, Anderson v. Gorrie, 1895, 1 Q.B. 668; Scott v. Stansfield, 1868, L.R. 3 Ex. 220 ; as to advocates, Munster v. Lamb, 1883, 11 Q.B.D. 588; Mackay v. Ford, 1860, 5 H. & N. 792 and as to witnesses, Seaman v. Netherclift, 2 C.P.D. 53. 1876, 1 C.P.D. 540 But there must be judicial proceedings pending before a competent Court {Royal Aquarium, etc. Society v.' Parkinson, 1892, 1 Q.B. 431). 3. Acts of State, etc. It is not competent to a civil court to entertain a suit in respect of a communication made by one official of state to another in the course of his official duty, or to inquire whether or not he acted maliciously in making it (Chatterton v. Secretary of State for India in Council, 1895, 2 Q.B. 189). similar privilege extends to all acts of State, and to the official notification of such acts in the London Gazette; to all State papers ; and to all advice given to the Crown by its ministers or ambassadors.
statements.
Qualified Privilege
communication made bona fide upon any subjectin which the party communicating has an interest or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty." And the word " duty " " cannot be
matter,
"A
217
confined to legal duties, which may be enforced by indictment, action, or mandamus, but must include
moral and social duties of imperfect obligation " (per Lord Campbell, C.J., in Harrison v. Bush, 1855, 5 E. &
B. at pp. 348, 349).
1.
Answers
to
" If a person in
who
any matter of business asks a question about his character from some one who has means of knowledge,
it is for the interests of society that the question should be answered ; and the answer is a privileged communication" (per Brett, L.J., in Waller v. Loch, 1881, 7 Q.B.D. 622). The commonest instance of this is the
Communications Volunteered. There are some it is the duty of the defendant unasked and of his own accord to give certain information to his friend and neighbour, or even to a stranger, e.g. where a confidential relationship already existslbetween the parties ; or where a complaint as to the cc/nduct of some public official is made to his superior officer. The rule in such cases is thus laid down " Where a person is so situated that it becomes right in the interests of society that he should tell to a third person certain facts, then if he bona fide and without malice does tell them, it is a privileged communication " (per Blackburn, J., in Davies v. Snead, 1870, L.E. 5 Q.B. at
cases in which
:
p. 611).
But
it
is
Contrast Coxhead
Bennett v. Deacon,
2 Q.B. 341.
v. Richards,
ib.
628.
And
3. Communications made in self-defence, to protect the defendant's private interests or to answer some attack made by the plaintiff, are privileged (Blackham v. Pugh, 2 C.B. 611 j Laughtonv. Bishop of Sodor and Man, 1872,
218
L.R. 4 P.O. 495). Any one who honestly believes he has a grievance is entitled to seek redress in the proper quarter. But he must apply to a person who has some duty or interest in the matter. It is not sufficient that the defendant honestly believed that such person had jurisdiction (Hebditch v. MacBwaine, 1894, 2 Q.B.
54).
4.
Common
Interest.
When
have a legitimate common interest in any matter, all communications passing between them with reference to that matter are privileged, e.g. communications between partners, co - executors or co - trustees, two
creditors of the
company
or ratepayers of
same debtor, two directors of the same the same parish {Spill v.
Every
fair
and
accurate report of any proceeding in a court of law is privileged, unless the Court has itself prohibited the publication, or the subject-matter of the trial be unfit
for publication.
This is so, even when the proceeding was an ex parte application (Kimber v. The Press
Association,
Limited,
1893,
Q.B. 65).
If
the case
lasts
more than one day, reports may be published separately of each day's proceedings, though all comment must be reserved till the trial is over [Lewis v. Levy, 1858, E. B. & E. 537; 27 L.J. Q.B. 282; MacDougall v. Knight and Son, 1886, 17 Q.B.D. 636; 1889, 14 App. Cas. 194). The report may be
-
219
abridged or condensed. "It is sufficient to publish a fair abstract " (46 L.J. C.P. at p. 406). 6. Reports of Parliamentary Proceedings. So it is now clear law that a fair and accurate report of any proceeding in either House of Parliament is privileged, although it contain matter defamatory of an individual (Wason v. Walter, 1868, L.R. 4 Q.B.
73).
7.
But, mainly in consequence of a decision of the Court of Appeal in the case of Pur cell v. Sowler, 1877, 2 C.P.D. 215, the following provision was inserted in the Newspaper Libel and Registration Act, 1881 (44
&
45 Vict.
c.
60,
s.
2)
"
report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate, and published without malice, and
"Any
the publication of the matter complained of was for the public benefit; provided always, that the protection intended to be afforded by this section shall not be available as a defence in any proceeding, if the plaintiff or prosecutor can show that the defendant has refused to insert in the newspaper in which the report containing the matter complained of appeared a reasonable letter or statement of explanation or conif
tradiction
cutor."
by or on behalf
It was found, however, that this section did not accomplish the purpose for which it was enacted (see Pankhurst v. Sowler, 1886, 3 Times L.R. 193). And accordingly in 1888 another Act was passed, the Law of Libel Amendment Act (51 & 52 Vict. c. 64), which
220
the following provision " 4. fair and accurate report published in any newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of any Act of Parliament, or of any committee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners authorised to act by letters patent, Act of Parliament, warrant under, the Royal Sign Manual, or other lawful warrant or authority, select committees of either House of Parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes, and the publication at the request of any government office or department, officer of state, commissioner of police, or chief constable, of any notice or report issued by them for the information of the public, shall be privileged, unless it shall be proved that such report or publication was published or made maliciously Provided that nothing in this section shall authorise the publication of any blasphemous or indecent matter Provided also, that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if it shall be proved that the defendant has been requested to insert in the newspaper in which the report or other publication complained of appeared a reasonable letter or. statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same Provided further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law
it
:
221
any matter not of public concern and the publication of which is not for the public benefit. " For the purpose of this section public meeting shall mean any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted."
'
'
Malice
As soon
is
privileged, the plaintiff has to prove malice (but not " Malice does not mean malice in law, a term before).
in pleading, but actual malice ... a wrong feeling in a man's mind. The defendant is not entitled to protection, if he uses the occasion for some indirect and wrong motive" {Clark v. Molyneux, 1877, 3 Q.B.D. at Malice may be proved by extrinsic pp. 246, 247). evidence, showing that there were former disputes
Or
it
by the defendant of the plaintiff. may be proved by intrinsic evidence, such as the
(Spill v.
VI
CRIMINAL
LAW
It is a misdemeanour at common law, punishable with fine and imprisonment on indictment (and in
222
some few cases on a criminal information), to write and publish defamatory words of any living person, or exhibit any picture or effigy defamatory of him,
provided the publication of such words, or the exhibition of such picture or effigy, is calculated to cause The attempt to publish such a breach of the peace. words or to exhibit such picture or effigy is also a crime. But it is not a crime merely to speak such Read sections 3, 4, and words, however maliciously. 5 of Lord Campbell's Libel Act (6 & 7 Vict. c. 96). To publish a libel on a dead man will be a crime, if it tends to provoke his family to a breach of the
peace.
libel
on a thing
is
no crime
and wherever no
action would lie without proof of special damage, no indictment or information can be preferred.
Not every
proceedings.
made the foundation of criminal See B. v. Labouchere, 1884, 12 Q.B.D. "Private character should be vindicated at p. 322. in an action for libel, and an indictment for libel is only justified when it affects the public, as an attempt to disturb the public peace" (Wood v. Cox, 1888, 4
in a civil case can be
Times L.B. at
Publication.
For
p.
654).
this reason it is
a criminal case to
person
a publication to the prosecutor himself is the words would obviously tend to provoke him to a breach of the peace. For the same reason it is no answer Justification.to criminal proceedings for the defendant to prove that his words are true he must go further and show that it was for the public benefit the words should have been published (6 & 7 Vict. c. 96, s. 6). Special Protection for Newspapers. By section 8 of
:
sufficient, if
223
Law of Libel Amendment Act, 1888, "no criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel published therein without the order of a Judge at Chambers Such application shall being first had and obtained. be made on notice to the person accused, who shall have an opportunity of being heard against such appliAnd see sections 4 and 5 of the Newspaper cation." Libel Act, 1881 (44 & 45 Vict. c. 60). Blasphemous Words. It is a misdemeanour to speak, or to write and publish, any profane words vilifying or ridiculing God, Jesus Christ, the Holy Ghost, the Old or New Testament, or Christianity in general, with intent to shock and insult believers, or to pervert or mislead the ignorant and unwary. This intent is an essential element in the crime {per Lord Coleridge, L.C.J., in R. v. Ramsey and Foote, 1883, 48 L.T. 739 15 Cox, C.C. 231). Obscene Words. It is a misdemeanour also to publish obscene and immoral books and pictures. By the 20 & 21 Vict. c. 83, justices in certain cases may issue a warrant authorising their officer to search for, seize, and bring before them obscene books and pictures and then to serve a summons on their owner, on the hearing of which the justices may order such books or pictures to be destroyed. And see the Indecent Advertisements Act, 1889 (52 & 53 Vict. c. 18). Seditious Words. It is a misdemeanour to speak or to write and publish any words which tend to bring into hatred or contempt the sovereign, or his ministers, or the government and constitution of the realm, or either House of Parliament, or the Courts of Justice, or to excite his Majesty's subjects to attempt the alteration of any matter in Church or State, otherwise
224
But " in a free country like Lord Kenyon, C.J., in R. v. Beeves, 1796, Peake, Add. 0. 86, "the productions of a political
than by lawful means.
ours," says
" The author should not be too hardly dealt with." people have a right to discuss any grievances they may have to complain of " (per Littledale, J., in B. v. "A journalist may Collins, 1839, 9 C. & P. 461). canvass and censure the acts of the Government and their policy and indeed it is his duty" (per Fitzgerald, J., in R. v. Sullivan, 1868, 11 Cox C.C. 54). At first the printing-press was Liberty of the Press. regarded with apprehension, and deemed a danger to the State. The king endeavoured to restrict the num-
ber of presses and to keep them all in safe hands. Then a Censor was appointed, and no one might print
(or, later, publish) a book without his Imprimatur. This censorship, in spite of Milton's noble protest the Areopagitica, published on 24th November 1644 was continued till 1695. But since that date no preliminary license is necessary a man may publish what he will ; but he must be prepared to take the consequences, if a jury shall find that what he has " The liberty of the press," says published is a libel. Lord Mansfield, in R. v. Dean of St. Asaph, 1784, 3 T.R. 431, n., "consists in printing without any previous license, subject to the consequences of law." " man may publish anything which twelve of his countrymen think is not blamable " (per Lord Kenyon in B. v. Cuthell, 1799, 27 Howell's St. Tr. 675). Prior to 1792, indeed, this question was deemed one for the judge rather than the jury in a criminal case. The jury found the fact of publication, and then the judge decided whether the words were libellous or not. But Mr. Fox's Act (32 Geo. III. c. 60) put a stop to this, and restored the earlier criminal
:
225
and criminal cases that the question of libel or no The judge should explain to libel was for the jury. them what a libel is ; he may state for their guidance what his own opinion is of the document before him
by which the
identical,
practice in civil
was
viz.
but the ultimate decision of the matter rests with Since Fox's Act the English press has been the jury. the freest in the world.
INDEX
Absolute
privilege,
116-121
Accidental publication, 29, 113 Action on the case, 17, 21 Acts of State, 121
Affidavit,
119
Common
133-136
Concert, order of names on programme, 92 Confidential communications, 123-131 Construction to be put on words, 69-80 Contempt of Parliament, 149 of Court, 58, 197-200 Corporation, libel on, 22
Costs,
174
Damages, 172 Dead man, libel on, 184 Defamatory words, defined,
9, 56,
69
228
178
Pair comment, 64-68, 194, 195 Pair report, 142-148 Fox's Libel Act, 1792, 201 Freedom of speech, 36, 42, 196, 200
"
Pudge," 89
"
Good
Government, attacks
194-197
libel,
30
Interest,
when ground
of privilege, 122-137
"Lame-duck," 77
Law
of Libel Amendment Act, 161, 192 Letter placed in wrong envelope, 29 Libel defined, 9, 42, 56, 69 distinguished from slander, 1-8, 176-180 on a corporation, 22 ,, on a dead man, 184 on a thing, 12, 178 on the plaintiff's title, 15, 1 9, 21 ., Liberty of the press, 36, 42, 46, 196, 200, 201
INDEX
of straw," 106 Married woman, 27 Master and servant, 31, 33, 190 Matters of public interest, what Meaning of words, -70-93, 105
229
Friday," 10
are,
53-57
Newspaper
Libel
reports in
libels,
138-164
Obscene
193
Parliament, debates in, 36, 54, 117, 194 contempt of, 149, 194
,,
papers published by order of, 118, 119 reports of proceedings of, 148-154
Programme
comments
reports
of,
on, 36-68,
194-197
138, 154-164
Qualified
privilege,
122-164
Repetition of defamatory words, 138-142 Reports of judicial proceedings, 142-148 of parliamentary proceedings, 148-154 of proceedings of public meeting, 154-164 Reputation, defined, 24
Roman
Secondary meaning
made
in,
131
Slander of
title,
15, 21
Slang, 74, 86 Special damage, 3, 21, 23, 35, 172, 178 Story told by plaintiff against himself, 7
230
26
Thing, libel on, 12, 178 Third person, publication to, 24, 187 Threats by a patentee, 21 n. Tort distinguished from crime, 176-180
Trade-libel, 15, 19, 21 Trade Protection Society, 91 Truth of the words, 95-106
,,
Wall,
libel on, 8
Wax
spoken in
73
ironically, 86, 88
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