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Action on the case . Libel on a Corporation . . .22 .CONTENTS LIBEL PAGE Libel distinguished from Slander . 17 Necessity for publication to some third person Publication to a wife . been .. . . of some person must have . . 12 15 15 Slander of Title Trade-Libel . 9 The reputation . .. l What words injured are libellous . . .27 30 31 Innocent dissemination of a libel Must be a publication by the defendant II FAIR COMMENT ON A MATTER OF PUBLIC INTEREST Every one has a right to make such comments 36 Such comments are not privileged 38 . 24 .

What The are matters of public interest 53 59 Allegations of fact are not limits of a fair fair comments .THE LAW OF LIBEL PAGE They are not libellous . When I. comment 64 . Absolute Peivilege 116 117 Parliamentary proceedings Judicial proceedings 119 121 Acts of State. . 42 Criticism 43 . 74 77 . malice need be proved . Certainty as to the person libelled 82 Certainty of the imputation 86 94 95 95 102 105 Defences to an action of libel Justification . IV PRIVILEGE Privileged Occasions in general 107 109 . etc. Can a comment be published maliciously 67 III CONSTRUCTION AND TRUTH Meaning of the words employed 7 Words prima facie innocent Innuendo . Truth of the words Truth of part of the words Justifying the innuendo .

vii PAGE Qualified Privilege 122 122 123 Duty and Answers Interest to confidential inquiries Communications volunteered 124 131 Communications made in self-defence Where both parties have a common interest 133 PRIVILEGED REPORTS. 1888 161 164 Extrinsic evidence of malice Intrinsic evidence of malice 165 166 172 174 Damages Costs VI CRIMINAL LAW Distinction between a crime and a tort 176 1 To publish a libel is both a tort and a crime 78 . Law Malice of Libel Amendment Act. Newspaper Libel Act. Reports of proceedings at a public meeting. — continued . Qualified Privilege Etc. 138 139 142 148 154 158 Reporting the words of others Reports of judicial proceedings Reports of Parliamentary proceedings . MALICE.CONTENTS II. 1881 . .


You will remember the action which Mr.i is written or printed defamation. take the form of an effigy or a picture its it must be something permanent character. but I felt that it would be impossible.LIBEL I have been asked by the Council of Legal Education to deliver six lectures on the Law of Libel. It was originally proposed that I should include the law of slander. in a course of six lectures. which was . a libel . is spoken defamation . libel. for a wax-work B figure. as merely to distinguish slander from libel. not fleeting like spoken words. A you know. Limited. except slander. Or in libel may . to deal satisfactorily with more than the law of We have accordingly nothing to do to-night with the law of slander. Monson brought against Madame Tussauds.

acquired a defamatory meaning from the situation in which the defendants thought fit to place it. a caricature in Vanity Fair may be a libel. then. There is another distinction. 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 . which I must mention in passing. He must the words impute that he has committed a crime. written. A will third distinction is the one which con- cerns us most to-night. So. when the words be merely spoken. the plaintiff has to prove a great deal more But he can recover damages. This. too. written or printed or otherwise per- manently recorded. though it generally is not. but which. Any words which if reputation of the plaintiff are libellous. which would not be actionable merely spoken. In many cases words if be actionable if written or printed and injure the published.2 THE LAW OF LIBEL I undoubtedly a good likeness of him. or that he is sufferbefore satisfy the jury that . is the chief distinction between libel and slander a libel is : that a slander is merely spoken. at all. though I shall deal with more in detail in my sixth lecture.

Of course. and one bad one which this generally given for distinction between and slander : A slander may be uttered in the heat of . called special the plaintiff must prove what damage . if pecuniary loss has been caused to the plaintiff by the publi- he will prove this fact to but it is not necessary increase his damages cation of the libel. will succeed in discovering tion is another matter ! them to his Now. or that they disparage him in the way of his office. there . Whether he . . if the plaintiff be a woman or girl. in an action of libel it is never necessary to prove special damage.I LIBEL 3 ing from a contagious disorder. or. that he has sustained some pecuniary loss as a direct consequence of the defendant's uttering the words. or trade . that is. . Now. profession. libel to show can this recover You is will at once ask. that the words impute to her adultery or unchastity. for a plaintiff in an action of he any such pecuniary loss damages without it. Why is ? That a very proper question for a student of our ask. In all is other cases. satisfac- are two are good reasons libel 1. law to He should always try to get at the reasons for everything.

Every one now can read.4 THE LAW OF LIBEL i the moment. The 2. and the mischief durable. circulation of a newspaper cially if it is enormous. And even a private letter may turn up in after-years. espe- be known to contain libellous matter and many people implicitly believe every word which they see in print merely because it is in print. the publicity is thus less much 3. who probably are acquainted with the speaker. Whereas a slander only reaches the immediate bystanders. and reach persons for whom it was never intended. who have heard the rest of the conversation which may greatly qualify his assertion. who can observe the manner and note the tone of the speaker. Those are the two good reasons. and so do incalculable mischief. The written or printed matter is permanent. is Another reason often assigned that a libel conduces . and no one can tell into whose hands it may come. the reduction of the charge into writing and permanent and raise a form show greater deliberation its subsequent publication in a suggestion of malice. and know what weight is to be attached to any — charge made by him less . and under a sudden provocation . in extent.

as if you wrote him a letter expressing your sentiments with equal force. or to be any satisfactory explanation for your statement that certain words if written are actionable. although it may be reputation has in fact . 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. " They may be very good reasons. considerations which you have been urging do not go to the cause of action. " why a plaintiff should recover a smaller amount of damages in an action of slander libel for the than in an action of same words but they do not appear to me to go to the root of the matter. he done. but only to the amount of damage spoken words. and that a slander I think you of the just as likely to cause a breach if you abuse a man to his face by spoken words." you would like to say. any more than by the bad one. are But I doubt that. That is what I have ventured to call a bad peace reason.i LIBEL 5 to a breach of the peace does not. If the plaintiff's been injured by the ought to be allowed to recover some damages. whereas the The same words if merely spoken are not.

and was almost persuaded to repudiate the distinction between written and spoken scandal . Sir James Mansfield.. C. : And so the full Court decided that they could not in opposition to these old cases in 1737. It is clear . 4 Taunton. by Lord Holt. addressed to the Court of Error in 1812 in the case of Thorley v. it is argument. to more.B. and It is exactly the felt the weight of Mr.J. But the Court replied that he was even then too late to raise the point. 355. a very sensible no original idea of yours.J. had the words he would have been entitled Well. Barnewall's arguments. but he found on looking into the authorities that that distinction had been established by some of the greatest judges known to our law by Hale. i true that. " venture to lay down at this day that no action can be if written. Mr.. C. in 1694.6 THE LAW OF LIBEL been written.C. to attempt to shake a fortiori too late it in 1896. in 1678. L." I confess. argument which that eminent lawyer." maintained And is if it was too late to disturb this well-recognised it distinction in 1812. and by Lord Hardwicke. for maintained for any words which an action could not be they were spoken. C. Lord Kerry. that is.J. Barnewall..

how he had once been mistaken for Jack Ketch at an inn in Bury St. in which ancient borough he served . the important office of assistant overseer. the case of Cook v. Ward. But the judges would Tindal. and was urged that he ought not to recover any damages because he had told substantially the same story himself. There the plaintiff had himself told a party of friends a humorous story against himself. is not listen to this argument. that an action of libel will for i many words which are not actionable if merely spoken. Take. 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. but be ass ! careful not to write him down an For after all there is a solid distinction between a spoken slander and a printed libel. published the story in his newspaper for all the world to read. 409). C.i LIBEL lie 7 law. then. laid especial stress on the fact that " there . which was decided in 1830 (6 Bing. for instance. He it sued the proprietor of the paper for libel. You may call a man a liar or a coward or a libertine with impunity. Edmunds during the Thereupon the defendant meanly Assizes..J.

393. Eep. the words which are so written or printed or otherwise permanently recorded . copper. then. ignominious sign against his front-door. it has been solemnly decided that secondary evidence may be given of the words which were chalked on it. It may be written with pen and and ink.8 THE LAW OF LIBEL i a great difference between a man's telling a ludicrous story of himself to a circle of his own all acquaintance. A chalk mark on a wall may be a libel on the plaintiff and because the wall cannot be conveniently brought into court. 5 b. This is law as ancient as see Lord Coke De famosis libellis. 125. 1598 on him. or fixing up a gallows or other' reproachful or to public view . or black lead pencil. may be a libel . 3 Times or L. may be written on paper. and a publication of it to the world through the medium v. A libel. or anything else. so may any other mark or sign exposed and conveying a defamatory meaning. of a news- paper. must be written or printed It otherwise permanently recorded. parchment. or in chalk. Next. wood. or colours. A statue or a picture may be a libel." And see Dolby Neivnes.R. Burning a man in effigy.

have taken this view of the matter in the last testants being a Roman century. cernot. and your words are libellous. . in answer to a question put to him at an election meeting. stances may undoubtedly have been Then. would date for Parliament. they must have I injured the reputation of some one. do not a better definition you have published about me which have made people think worse of me. the words actionable. If of him. surrounding circumSuppose a candialter the case.i DEFAMATORY "WORDS : 9 must be defamatory that is. Many of the best and noblest mankind have belonged to that ancient Church. must have made people think worse know that I can give you of a libel than that. 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. had stated that he was a Protestant then for the opposition . let us take one or two instances. Is a libel to write and publish of a is he of a tainly man that Roman Catholic ? In these days. then you have injured my reputation. And in England. words And it since I cannot give you a better defi- nition. again. so long as the penal statutes against Papists were in force.

would be a libel on him for this would amount he was a hypocrite and a liar. : to saying that not libellous in England to de" scribe the plaintiff in writing as " Man Friday "Man Friday. and that the words were therefore a libel United of black men in America . that the agency of Lord William Nevill had been closed by the directors. Again. it is Denman man." as Lord to some one else. giving them the address of the company's new west-end office. . 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. Lord William Take another instance. secretary of the company sent out a circular to all thfe policyholders who had been introduced by the plaintiff.10 THE LAW OF LIBEL 1 newspaper to print and publish that he really was a Roman Catholic. what was not true. and adding." in the remarked. They are not so fond as we are here. 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. "was a very respectable But such words would be actionable States.

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. The Master of the Rolls said. But now the House of Lords has taken the bull by the horns. but there was the verdict. jury on that question was wrong " (Nevill Fine Arts and General Insurance Company. 2 Q. at p. and declared that the circular was not a libel. am unable to say that the finding of the v. Limited. very doubtful about the matter .B. " It seems to me that the terms of that circular come as nearly as possible to being incapable of a defamatory meaning. and Baron Pollock gave judgment for the plaintiff for that amount. and they did not like to upset it. 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. The Court of Appeal was on him.I DEFAMATORY WORDS 11 The jury found that the circular was and assessed the damages at £100. 1895.R. judge at the trial will not stop the He will explain to the jury the law as . the case. 168). 97). a libel. and could not be construed into a libel." the jury to say whether I But it " it would be for was a libel or not. are clearly incapable of any defamatory meaning.

in 1890. was rowed on New South Wales. 284). as men of common sense. a newspaper published in Market Street. words must have injured the reputation of some person. The plaintiff cannot sue for words which are defamatory of some one else. if he thinks fit. to tell . he may. A. And the jury as a rule decides that question rightly. 1894. On the same afternoon an account of the race was published in two editions of the Evening News. resulting in a victory for Kemp. Bennett.12 THE LAW OF LIBEL i what libel is.C. to say whether the words are a libel or not. refer To illustrate this distinction let case. me you to a recent Australian which aroused considerable attention in the news- paper world (Australian Newspaper Com- pany. Kemp and between two professional M'Lean. A sculling race oarsmen. and that person must be the plaintiff. on the afternoon of Thursday the 1 5th of May the Parramatta River. the To be thing. then. . them his own opinion of the words before them and then he will leave it to the jury. The circumstances which gave rise to the action were curious. Limited v. And an attack on a thing is not a libel on the individual who owns that libellous.

and that in these papers there were no " Details " published from which the truth could be ascertained. There was also some evidence to prove that. to meet the possible case of M'Lean winning the race. in a few of the copies of the earlier edition Kemp had won of the Evening Netvs published the same afternoon. Thereupon the Australian Star. on the contrary. published an ing" their contemporary on They referred to blunder. a rival Sydney newspaper. the an- nouncement was made in large type that M'Lean had won the race.i DEFAMATORY WORDS 13 The greater number of the copies printed of both editions contained the correct statement that Kemp had won. triumphantly told a wondering public. article " chaff- this "fearful terrible it bungle made by the Evening News. who ." from which it appeared that. which had been prepared before the race was rowed." "The First. tunately in edition as some 1250 copies of the later M'Lean was announced in large type the winner. the race. But unforSydney. The error in the incorrect copies arose from their being inadvertently struck off from a plate. and this announcement was followed by a paragraph headed " Details.

the proprietor of the Evening News. not the man. " Ananias" was applied to the newspaper." Star. Then it doubled back in a following edition. rather rough on M'Lean. not . 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. Poor little silly Noozy ! Thereupon Mr. to be adjudged the loser everywhere else. urging that the word " Ananias " necessarily involved deliberate lying. to say the very least of it. brought an action of libel. But the Judicial Committee of the Privy Council held that this was not so. and imputed personal dishonesty to himself. and told a wondering world in effect that the preceding edition was an unmitigated perversion of the truth. that And in another part of the : paper appeared these words " It is. According to the Market Street evening Ananias. Bennett. both Kemp and M'Lean won the boat-race yesterday.14 THE LAW OF LIBEL I had previously absorbed the correct result from the M'Lean had got home first. after having won the boat-race in Market Street. No newspaper desire proprietor could intentionally perpetrate such a mistake as had been made in the plaintiff's paper the word to . and that both Kemp and M'Lean had come out on top.

i SLANDER OF TITLE 15 to the plaintiff. "but which has in fact injured his . real or personal. or impugn the plaintiff's title to some property. which impeach a man's Such title to any property. employed to include all statements. whether written or verbal^ which does not attack a man's moral character. or in any way affect his private or professional reputation. I hope. You will find the law relating to those other actions under such headings as " Slander of Title" and "Trade-Libel. it Hence you may take preciate it as a general pro- position of law that words which merely de- some thing. are not defamatory in the strict sense of that term. — whether A I owned Blackacre or not. You would. words clearly do not affect his reputation. but not to an action of libel proper." " Slander of Title " is the term usually. Actions for such 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. think just as highly of me. " Trade-Libel " is a statement. did not in that context amount to a libel. and. or question his solvency. whether written or spoken. They may in certain events give rise to an action. though in bad taste.

in fact resulted to him from a their You will find very recent instance of this kind of action in the Law Reports of 1892. in short. which." and that damage has publication. Evans. It was rather to . too. or assert that they are not the 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. This was no libel in the ordinary sense of the word. who either knew or ought to have known the contrary. — yet clearly calculated to injure the plaintiff in will be actionable if the plaintiff can prove that they are false.16 THE LAW OF LIBEL i and caused him pecuniary loss in the Such statements may either disparage the quality of the goods which the business way of his trade. There the defendant.B. I refer to the case of Rat- cliffe and Sons v. 1892. and that the firm of Ratcliffe and Sons had ceased to exist. though not personally defamatory. 524. are or copyright. plaintiff sells. So. that they were his trade — published " without lawful occasion. 2 Q. or to bring actions against him any words. published in his newspaper that the plaintiffs had ceased to carry on business as engineers and boilermakers.

. But that is not an action of libel at all. who live over the shop. and yet if they be uttered with deliberate malice by one who knows that their utterance will undoubtedly cause such loss to the plaintiff. an action will for maliciously against the defendant doing the plaintiff an injury. Suppose there are only two grocers in the town of Eatanswill. if loss does in fact follow lie from their utter- ance. and one of them maliciously spreads a false report that the children of the other grocer. Then there is another whole category of words which are not really defamatory at all. on a handsome But the paragraph was untrue.I LIBEL Ratclifl'e 17 the credit of the Messrs. or disparage the goods which he sells. reputation of the poor children is The not injured. or impeach his title to any property. and Sons therefore recovered damages. It is what is called " an action on the case. that they had been so successful in their business that they could now afford competency. Ratcliffe the business of that firm." Let me give you one or two instances to make my meaning clear. have the scarlet fever. which do not injure the personal reputation of anybody. then. to retire it and the publication of did great injury to Messrs.

which you will find in the fifth volume of Barnewall and Adolphus' Reports. knowing that it would injure him : — . at p. contended that if praise produced special damage. and a third person. J. 96..B. in the opinion of that relation. would that be actionable 1 " And Sir John Campbell answers " If the words were spoken falsely with intent to injure. put him a case (p. nor is are not dis- his title to them impugned. 1 Ex. the Solicitor-General. D. Take another instance in the case of Kelly v. by not to leave him — fully distinguish cases of malicious injury to a man's business from cases of personal libel ." And clearly he was right.18 THE LAW OF LIBEL sells r The goods which the father paraged. such praise was actionable and Littledale. in Riding v. tells the latter a generous act which the first which he induces the relation money. There is another reason why you must care- had done. C. damage and there- But it is quite clear that the spreading of this malicious invention will do incalculable to the trade of the fore unhappy father. Sir John Campbell. 648) " Suppose a man had a relation of a penurious disposition. they would be actionable. You will find authority for this proposition in the judgment of Kelly. Partington. Smith. an action lies.

hereby give notice that such wine cannot be the wine it is represented to be. They can recover damages for the injury done to the business. Delbeck & Co. 1887. further give notice that if such wine be shipped from France they will take proceedings to stop such shipments. unless it has their names on their labels.D. following effect " There the defendants inserted in the newspapers a paragraph to the CAUTION "DELMONICO CHAMPAGNE " Messrs. 18 Q. Delbeck & Co. finding that wine stated to be Delmonico Champagne is being advertised for sale in Great Britain. and such other proceedings in England as they may be advised.. Hatchard.I TRADE-LIBEL is 19 and that this : the cause of action for an injury to a man's reputation dies with him." Was there any this ? on the character of Mr. because the value of the estate which comes into their hands has been to that extent diminished.B. This distinction recent case of is clearly pointed out v. 771. which was reflection . whereas an action for trade -libel survives to his executors. who was advertising Delmonico Champagne for Now. as no champagne shipped under that name can be genuine Messrs. in a Hatchard Mege and others.

Now the words were merely a personal imputation upon Mr. 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. or was it use the labels ? name simply a denial of his right to " Delmonico Champagne " on his Mr. was a personal charge against Mr. Hatchard. The executors accordingly went . w$. and his if executors carried on the proceedings. The Court decided that the first sentence in the paragraph. others of you think that it was merely an attack on his labels. the action died with him. which asserted that the plaintiff's wine was not the wine which he represented it to be. and for those words the action could be continued by the executors.20 THE LAW OF LIBEL I sale. that survived to his executors. Hatchard brought his action. But if they were an attack on his right to use a label. and . but the Divisional Court granted a new trial. and after the pleadings were closed he died. you are both right. Hatchard. ? Which do you think it was it was a personal some of you think libel on Mr. and all claim for damages for those words died with him. The rest of the paragraph was a trade -libel. on with the action. Well. Hatchard of misrepresentation.

as I shall explain Whether the words be privileged hereafter. when the words are defamatory at . c. 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. action of libel. and actions on the case for malicious injury. with a practice and procedure of its own. 32 of the Patents. i of some individual.C. the plaintiff need not prove malice. But in an ordinary J Mellin. because the jury were satisfied that there . Designs. A. But this. 154).I TRADE-LIBEL 21 eventually failed to recover any damages at all . 1883 (46 and 47 Vict. 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. . though often classed with actions for trade-libel. For in all these cases of slander of title. . and Trade Marks Act. trade-libel. he need prove none of these when the except that in one case words were published on a privileged occasion he must prove malice. in the fourth See the report of the second trial volume of the Times Law Eeports page 118. 1895. — — 1 In the case of an action brought against a patentee for "threats" under Sec. . 57). is really a new statutory action sui generis. things .

if Can a injured corpora? tion sue. or that he lacks generosity. You may It ask what I mean by ? a person. it is. Is a corporait is not. as I have already told you. If a season-ticket holder for abuses a railway company treating . common him good taste. is the The injury to the reputation of some person. he need never prove any special damage. : Nor need he prove that they are false it is for the defendant to prove that they are true. you back from these and ask you to confine your attention to actions of libel proper. its reputation That depends on a previous question.22 THE LAW OF LIBEL I or not. other actions to which I have been referring. the gist of which. so long as the words are defamatory. Has it a reputation that can be injured ? Only in a restricted sense. and is a limited kind of person. though akin to actions of libel. who can or sue for words which honour impute sense. And now I must call miscellaneous actions. tion a person is Well. It is any mere his not like an individual. if he can. A corporation impugn is not allowed abstract to possess a reputation for virtue. because in them the is reputation of no person injured. are not strictly actions of libel at all.

4 H. lie. at p. But a the v. Q. But might be a different matter if he accused the company of though unintenone would think tional. Mayor and Williams. Limited tion. it was doubted whether a corporation could have any reputation apart from its property or trade. corporation can undoubtedly sue for any words which or affect its property. North.B. 1894. Haivhins. No the worse of them morally for that. indeed. special members damage . 1859.Eastern News Associa1 Limited. (South Hetton Coal Company. & N. or injure its trade business v.i CORPORATION 23 shabbily. 94. but on its individually has thereby been caused to the corporation. Nor can it sue for any words which are a 90). impute to it — libel or a slander. but it would tend to reduce the number of seasonticket holders.B. It cannot bring an action in respect of any words which conduct of which a corporation such as murder physically cannot be guilty Omnibus Com(Metropolitan or corruption pany v. probably it no action would habitual. Corporation of Manchester 1 Q. not on it. unpunctuality. It is very doubtful whether a In the case of corporation can sue for words which merely affect its dignity or honour. 1891. — unless. 133).

all in power to publish. to succeed an action of libel. be subsequently pubif And no . and did his plaintiff. cause of action arises the words are only communicated to the person libelled tion. not the good opinion which he has of himself. in Still. is not actionable. It may be that the de- . the plaintiff must prove something more. words defamatory of the yet if they never reach the eye of . that let us assume that the plaintiff the is.| others hold him. and that they were such words as would injure the or less reputation of the plaintiff. for that does not injure his reputa- though it may wound his self-esteem. but did not intention. A man's reputation is the estimate in which . Merely composing a libel Merely writing a libel is it not actionable. or recorded in some more permanent form by the defendant. fendant desired and intended. He because in that event no injury has been done to his reputation. He must prove publication.24 THE LAW OF LIBEL i And now has satisfied libellous. jury that the words are he has shown that they were written or printed. unless lished. and not merely in cannot recover damages for what might have happened. He must prove a publication by the defendant —a publication in fact.

who transcribed The type-written letter was then machine. press-copied by the office boy. 25 no action lies. direct to the plaintiff. it containing words to a shorthand by a type -writingclerk. . had just written to the plaintiff. any one except the 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. I will give you a few examples to illustrate this rule.I PUBLICATION plaintiff. and the defendant could not letting his friend resist the opportunity of a smart letter he know what the letter to him. he gave it to a clerk to copy. This was . signed by the managing director. and sent direct to the plaintiff's office. plaintiff. the defamatory words must be published by the defendant to some person other than the plaintiff. To be actionable. suppose before posting it tion to the friend. So he read That was clearly a publicaOr. placed in an envelope. that again is a publication by the defendant of the to his own clerk. that the plaintiff must show a publication to a third person. The managing company dictated defamatory of the director defendant a letter.

Still this is undoubtedly a publication by him to them. but not sealed. The defendant wrote post-card. 524). the plaintiff is not expected to prove that there has in fact been a publica- tion . it is for the defendant to prove that there has not. He should not have used a postcard.words were read by the postman and by the plaintiff's housemaid who Perhaps the defendant took his letters in. 1891.B. so B could have read it if he B did not read it. veyed it direct to the plaintiff. So if the defendant sends a message by telegram instead of in an envelope properly fastened up. and posted. and gave it to B to deliver to the plaintiff. It was folded. whenever the defendant uses a post-card. words on a which he addressed to the plaintiff. this is clearly a publication by the defendant to at least two telegraph clerks. libellous Q. but conhad thought fit. . This is no letter The defendant wrote a publication. The .26 THE LAW OF LIBEL I held by the Court of Appeal to be a publication both to the type-writer and to the office boy (Pullman 1 v. never intended them to read what he wrote. Hill and Company. In practice.

" into M's up and delivered it unopened to the plaintiff himself. Thus. would wish such a communication to be Hence it has been held that an action . Now. No publication. then the defendant must satisfy the jury that no one actually did read it. Mrs. If. a husband is still liable to pay damages for a libel published by his wife. what about wife ? a publication to a man's Is she sufficiently a third person to ? you know. it down Posting up a libellous placard and taking again before any one could read it. A A is the last person in the world to whom Mr. is no pubbcation. enclosure. who alone was libelled. made. M picked it "or C. in spite of all the Married Women's Property Acts. That would never do.I PUBLICATION 27 The defendant threw dressed to a sealed letter ad- the plaintiff. But it does not follow that you may publish a libel on A to A's wife with impunity. however. satisfy this rule There is. for neither C nor M read the letter. it was exhibited long enough for any one to read it. as . an old rule of law that a husband and his wife are one and this is still law for many purposes. even though she published it without his knowledge or consent.

converse case. and it decided should that no action lies for a libel written by a husband and published by him only to wife. I confess I have thought it was a publication. Such an interchange of opinion is not in law a publication at all Wennhah ( sations and wife. Ash. so long as no one else shares their confidences.D.B. 20 Q. On the other hand. that third Now take the clearly Suppose it is proved that the defendant never desired or intended his words should be published to anv person. and yet somehow they are .28 THE LAW OF LIBEL if I lies the defendant publishes a libel on the ( plaintiff to the plaintiff's wife Wenman v. v. still no action lies if they never reach the eyes of any told one except the plaintiff himself. 635). 13 C. 836). knows better. and may have done all in his power. but a privileged one.B. Morgan. to procure a publication of defamatory words. I his you just now that although the defendant may have desired and intended. however. The Divisional Court. 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.

but it does not affect the plaintiff's cause of If you accidentally or unintentionally pubbsh to a third person words defamatory of me. but he unfortunately put it into the envelope which he had addressed to B. unless you can satisfy the jury that you were guilty of no negligence. and were not at all to blame in the matter. if such his publication occurred through any act or fault of the defendant.I PUBLICATION lie ? 29 published. though inadvertently. action. will an action Yes . he will be liable. Suppose the defendant wrote two letters. The defendant meant to send A's letter direct to A. he must pay The absence of any wicked intent damages. and sent to B the Is this letter which he had intended for A. so that will . one to A and one to B. a publication by the defendant to B of a libel on A ? Clearly it is. may diminish the amount of such damages. If I write a libel and leave it about on the it top of the desk in my study. I shall succeed in an action against you. for it was through the negligence of the defendant that the libel was published to B. If by conduct he has in fact injured the plaintiff's reputation. and the letter to A was an angry and libellous letter.

that would be no publication For the only publication by the defendant to the messenger. who neither wrote nor printed the libel but it merely sold the newspaper containing the ordinary neither in way of his business. cation. or was likely to any libellous matter. . and fastened down and that sent it to him by a messenger . I think. i catch the eye of any chance visitor visitor is and a it. 1885. thus innocently disseminated (Emmens v. Pottle. The sale of every written or printed copy of a libel is prima facie an actionable publiBut if the defendant is a newsvendor. If the and placed defendant wrote a libellous letter it in an envelope properly adit dressed to the person libelled. 354).B. shown into the and he sees the libel there room in my and reads absence. and who that knew nor ought to have known that newspaper did contain. there was solely caused by the wrongful act of the messenger. he will not be deemed to have published the libel which he contain. if messenger wrongfully broke open the envelope and read the libel. I am to blame for leaving such a document about.D.30 THE LAW OF LIBEL . be a publication of the by me to that visitor. 16 Q. that libel would.

Take the by Lord Esher in Pullman v. Of" course the defendant his only liable for his servants own acts and those of is or agents. I think clerk is it ? would be. He will not be responsible for any publication which caused solely by the in- dependent act of some third person. 1891. he will be case suggested liable. and addressed that envelope to the plaintiff.i PUBLICATIOH 31 and the defendant was guilty of no negligence in the matter. the letter. Hill and Company. finding that the envelope was not gummed down.B. took the letter out and read it. and then gave it to a clerk to convey to the plaintiff. would that be a publication by the it defendant to his clerk Well. put fasten it after he wrote in an envelope. 527 : . or by any act or conduct contributed to cause the publication. at p. But suppose the defendant. But if the defendant had any share in the matter. Suppose the wicked clerk on the road. but did not down. Of course the more to to blame for reading a private letter. still But is not the defendant blame for not properly fastening think that is a publication up the letter ? I by the defendant is to his clerk. 1 Q.

He shot at A and wounded him. had a case about three years ago. In an American case the plaintiff. I should say that would not by the writer. J. expressed the opinion that there was no publication by the defendant the sergeant was not his agent. which he hoped would be found on his dead body and published to all the world. properly addressed to himself and properly sealed. it aloud at the trial to prove that the crime was committed deliberIt was copied into many newspapers. but was arrested before he could shoot himself. The circumstances were unusual. sent for a friend of his and also for the . which illustrates the same principle. and the paper was found on him by a sergeant of police..32 THE LAW OF LIBEL it I " If the writer of a letter locks up in his own its desk. he wrote a libellous paper. He was taken to the police-station and searched. Mathew. The defendant had made up his mind to murder A and then to shoot himself. who subsequently read ately. after receiving a libellous letter from the defendant. stating his reasons for committing the crime. . and a thief comes and breaks open the desk and takes away the letter and makes be a publication I " contents known.

re- peated the contents of the letter. is The envelope properly fastened in dressed to the English merchant. " Tell me what this is about. German letter to and in so doing he. And this suggests to me a case of greater is difficulty. lication Can it be said that this is a pubby the defendant ? Can the plaintiff D . the plaintiff. Suppose that the defendant in a is German merchant. and a German too. It was friend. saying. he sees that it is calls for his German clerk. it down and adwho opens German. the plaintiff's own act. It was held that this was no publication by the defendant to the plaintiff's friend. The defendant a letter considers that he has some cause of complaint against so he writes in Ger- man to the employer of the plaintiff. that the plaintiff the office of an. a clerk English merchant. the defendant. 33 defendant he then. his- necessarily publishes to employer a libel on himself. the plaintiff to translate this his employer. so he and hands it to him. in their presence. the plaintiff.I PUBLICATION . in the presence of the plaintiff's admitted that he had written it. and asked the defendant if he wrote that letter. the plaintiff." Thereupon it becomes the duty of himself.

. and seems hard there- fore that he should escape liability.action against his principal. in the meantime the general clear. and when it it arises I shall happy But is to argue in the Court of Appeal on principle either side. in fact. that in order to succeed in an action of libel the plaintiff publication must prove an actual by the defendant to some third or person words which have injured the reputation of the plaintiff. printed of written As soon as the plaintiff proves that. The case on be the border line . he has established a prima facie case. compel the it own reputation. plaintiff to injure He his did.34 THE LAW OF LIBEL I be the agent of the defendant to create a cause of action against his principal ? Here you see the defendant has acted in such a way as to make it the duty of the plaintiff to the publish this libel to English merchant. On the other hand. it is difficult to hold in any case that the plaintiff can be the agent of the cause of is defendant to create for himself a .

a right which no one may infringe withThe out rendering himself liable to an action. and of every citizen. to have his good name mainAnd this right is what is tained unimpaired. good against all the world. a right absolute. plaintiff in such an action need prove neither damage nor malice. the right of the plaintiff. for no man may discalled by academical professors 1 1 See post. . They mean by this phrase. p. if he satis- fied the jury that the defendant had published or some person other than himself written It is printed words which had injured his reputation. (who love a tag of Latin) a jus in rem.II FAIR COMMENT ON A MATTER OF PUBLIC INTEREST In my last lecture I dealt prima facie case. would to We with the plaintiff's agreed that the plaintiff establish a cause of action. 110.

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. the public acts of any public man. must not be if Which is to yield to the other. the defendant has his rights too. on the other hand. . or which concern himself as a citizen of the State.36 THE LAW OF LIBEL n parage or destroy the reputation of another an actionable tort. to canvass any grievance. 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- ference of the State. and to criticise. In this free country every citizen has a right publicly to discuss all matters of public interest. The the reputation must not be injured defendant's freedom of speech restricted. whose public conduct he criticises So here you have a plaintiff's conflict of rights. His bringing an acjielh means that he is seeking compensatrixm~for an . even with severity. But. exercising this right it And if in will go hard he do not say something derogatory to the reputation of those or attacks. He is an English citizen as much as the plaintiff.

then you must not injure him at all. In other words. he shall recover no damages. In some of the reported decisions of our Courts. is . and whenever your careful that it does If indeed likely to injure act. only be relieved from liability so long as he carefully keeps within proper bounds. is zealously guarded The right of criticism or fair comment. though your neighbour. should overstep the line and unnecessarily impute dishonourable motives. if a defendant." injury done to FAIR COMMENT 37 him by an alleged wrongful If the act of which he not wrongful but legitimate. is complains fair comment on a matter of public interest is not an actionable libel at all. law is keen to resent this as a malicious libel masquerading in the guise of a fair comment. But. or maliciously pry into his private concerns. a act of the defendant. you must be very him you can exercise your right without injuring him at all. and the defendant will . Hence. when exercising his undoubted right to criticise and comment on the public acts of a public man. the law guards jealously the reputation of every one — even of as little a politician lawful. the injury as possible. the fact that the words complained of . then. on the other hand.

and to state whatto ever he honestly believes be the truth. if tell he a witness in the box. and nothing but the Or take asked to . for instance. who is give a character to his former servant it is when the duty of the former master to state what he applying for his character knows about that servant for the benefit of the person . even though what he writes should ultimately prove to be untrue. The writer may honestly believe that every word which he has written is perfectly true but that is quite immaterial. the whole truth. it There are certain occasions on becomes a man's duty to speak out mind fully and freely. This is because the occasion is privi- But quite a different rule prevails when the defence of "fair comment" is pleaded. . he be liable to an action. the ordinary case of a master that happens. This was most clearly laid down in the case of Campbell v. the truth. who is and if he states no more than he honestly will not believes to be true.38 THE LAW OF LIBEL fair H were a comment on a matter of public interest has been treated as though as it created what which his is technically known a privileged occasion. is This is so. if the jury should deem his comments unfair. leged. sworn to truth.

. 32 by the Eev." Dr. Campbell was the editor of a newspaper L. that highly refreshing and invigorating newspaper. 1863. according to Dr. an action brought called the British Ensign. 185.B. will find set out in full in the Reports : but give you a few extracts "Among the many blessings that we have to be thankful for in this life. and a very cleverly written " The Heathen's Best Friend. ought not People don't value it so highly to be lost sight of. as they ought to do. & S. Q." it headed I will You . in sity of which he strenuously advocated the necesEngland taking more active measures to convert the Chinese to Christianity. Dr.ii FAIR COMMENT 39 Spottiswoode. 769. Campbell against the Saturday Review for an article written in what is known as " the Saturday's good old style. and Dr. nor are they yet fully aware of the inestimable advantages it has been the means of It has. 3 B. the British Ensign. article. But in the for 14th number of the Saturday Review June 1862 there appeared an article. Campbell not unnaturally pubhshed the names and addresses of the subscribers who thus so generously supported him.J. a religious paper. conferring on mankind. Many worthy people who subscribed to this paper took large numbers of extra copies for distribution.

Fortunately. Gamp's acquaintance. half It seems an exceedingly low charge of one penny excess of generosity to set so low a price on so invaluable an instrument .' But as Mr. and to believe. awakened the Churches. not because it is worth duty. It has It has struck a deadly blow at the Papacy.' but it . when he (Dr. Campbell assures us that he does not look for his reward in the British Ensign office. that we must own to having had a transitory suspicion that Mr. we must accept his identity as fully proved. a Mr. Harris. — ' name is down for 5000 copies of the Ensign. but from love to the heathen. and all at the Campbell (than whom fied to judge). of Bath. . with Mrs." go. . T.. reproved vice in high places. Few have had the benefit of such an education. and made the common enemy of mankind quake with apprehension. "The Doctor refers frequently to Mr. " To buy up the Ensign is represented as a Christian Subscribe to the paper. . or anywhere there adjacent. Thompson's ! . comforted Christians in all parts of the world. that there never was no such person. . Campbell) is in a dilemma. To One enjoy the Ensign one must be brought up to it. stirred up the backsliders. but Dr. Thompson as his authority so frequently. is ever at hand to help him out. anything. Thompson. must be trained to browse on the evergreen pastures which stretch before us in that Elysium.. and we hope the publisher of the Ensign is equally satisfied on the point. was nothing more than another Mrs.40 THE LAW OF LIBEL n no man should be better qualirooted out infidelity from the land. "There have been many dodges losing paper ' tried to make a remained for a leader in the Nonconformist body to represent the weekly subscription as an act of religious duty.

v At the trial the jury was satisfied that the strictures on Dr. I had the honour of knowing that worthy gentleman when I was a boy at Bath.n FAIR COMMENT 41 Now probably this all is all very amusing. Court held this finding to be immaterial. And I it in the case of now been expressly decided Merivale and Wife v. that a fair . Carson. and the plaintiff recovered his £50. But they added an express their verdict to this effect : £50 rider to the article That the writer of in the Saturday Review did believe The it to be well founded. The words exceeded the limits of a fair comment. except in reduction of damages. if he thought that any good would result to the Chinese or any one else. Certainly the insinuation about Mr. has which will deal with presently. and whether the writer believed them or not the imputations in did not matter. and he was just the sort of person who would subscribe for a thousand copies of any paper of an evangelical type. but it is untrue. The words were libellous. for and found a verdict for the plaintiff damages. Campbell were undeserved. this decision that the is It follows from bona fides of the writer immaterial whenever the comment is un- fair. Thompson is quite unfounded.

no There reason is another and perhaps a clearer why a fair privileged occasion. stand a particular position or confidential relation to else. Legitimate criticism is no will should loss ensue to the plaintiff from it the publication of a legitimate criticism.B.. 20 Q. is no privilege at all. It is really a very simple matter. tort .42 THE LAW OF LIBEL a matter of public interest is n comment on libel at all. at p. not the peculiar of the press. be the damnum writer sine injuria. Now a privilege I a right whieh I I possess because am or I because in hold a particular office. Newspaper writers is : stand in no better legal position than anybody else.D. some one A right which every citizen possesses merely because he is a citizen of the State. " It is only of when fair goes beyond the limits comment that his criticism passes into the region of libel at all" (per Bowen. 283). . L. So please do not confuse bona fide comment with privilege. The exercise of a right is not an actionable wrong. comment does not create a The right to comment of public It is upon the public privilege acts men is the right of every citizen.J.

or recklessly imputes dishonour- able motives. A true critic never indulges in personalities. the father of the poet. (2) Criticism never attacks the individual. or call for public com- ment. his It does not follow a public or man into private life. action brought against Thomas Hood. by a gentleman called Sir John Carr. but only his work. True criticism differs from defamation in three particulars : (1) Criticism deals only with such things as invite public attention. and the judicious He will carefully examine the production before him. and then honestly and fearlessly state his true opinion of it. pry into his domestic concerns. matters of public CRITICISM 43 But the criticism must be criticism. as early as 1808. or to attain any other object beyond the guidance of the public taste. (3) The critic never takes advantage of the fair discussion of occasion to gratify private malice. and not defamation. who had written a book in 1805 called a case . I will refer which was decided at the beginning It was an of the century. but confines himself to the merits of the subject-matter before him. To you to illustrate these distinctions.

'The Knight (meaning the said Sir John) leaving Ireland with Eegret. of which Mr. and also containing therein a certain . great contempt. in the form of a book. intending to — " Which ridiculous representation of the said Sir John. falsely and maliciously published a certain false. and to bring upon him. of and concerning the said Sir John and of and concerning the said books. which Sir John had written. scandalous. calling "A and tion — Sir Ryghte Merrie and conceited Tour"." and then continues had been respectively published expose him to. in the form of a man of ludicrous and ridiculous appearance. and which same libel contained therein a certain false. and entitled. 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. the copyrights of which he had sold for " divers large sums of money. defamatory. and defamatory print.44 THE LAW OF LIBEL n The Stranger in Ireland. and appearing to be weeping. malicious. Hood made it great fun in his Pocket-book. and malicious. holding a pocket handkerchief to his face. of which the said Sir John was the author as aforesaid. and said books in quarto. therein called 'Frontispiece'.' and containing and representing in the said print a certain false. and defamatory libel. of and concerning the said Sir John. and ridicule. laughter. scandalous. and of and concerning the said books of the said Sir John 1st and 2ndly above mentioned. scandalous. malicious. yet the defendant. John brought his action.

ridicule. he the said Sir John would. that one copy of the said first-mentioned book of the said Sir John.. with the printed word Wardrobe depending therefrom (thereby falsely. and capable of being contained in a pocket handkerchief. 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. containing an account of a tour of him the said Sir John through part of Scotland." ' The declaration concluded by laying special as damage.ii CRITICISM 45 false. for the purpose of rendering the said Sir John ridiculous. meaning and intending to represent. scandalously. " That the said Sir John had been prevented and hindered from selling to Sir Eichard Philips. but for the publishing of the said false. and the corners thereof appearing to be held or tied together. malicious. Knight. etc. and defamatory libels. for a large sum of money. which. and maliciously. and contempt. £600. and the same remained wholly unsold . the copyright of a certain book or work of him the said Sir John. could. to wit. and that his the said Sir John's wardrobe was very small. and loaded with. and might have sold to the said Sir Eichard Philips for the said last-mentioned sum of money. and bending under the weight of. following the said representation of the said Sir John. of which the said Sir John was the author. one of them having the word Baltic printed on the back thereof. and ridiculous representation of a man and ridiculous appearance. and a pocket handkerchief of ludicrous ' ' appearing to be held in one of the hands of the said representation of a man. as if containing something therein. scandalous. three large books. malicious. and exposing him to laughter.

Where We . however poignant..46 THE LAW OF LIBEL of. the defendtrial ant pleaded one short and simple plea.J. will " I quote you his words : 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. absque injuria. and even to is . opinion that if intimated his clear the book published by the defendant only ridiculed the plaintiff as an author. n and undisposed and was greatly depreciated and lessened in value to the said Sir John. Ridicule is often the fittest weapon that can be employed for such a purpose." To this long-winded declaration. They should be liable to criticism. who was labouring to enlighten and ameliorate mankind 1 really must not cramp observations upon authors and their works. Not Guilty. 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. to exposure. If the reputation or pecuniary it is interests of the person ridiculed suffer. Locke ? But shall it be said that he might have sustained an action for defamation against that great philosopher. the action could not be maintained. The had not proceeded C. far before Lord Ellenborough. damnum the liberty of the press.

General had said addressed the jury on behalf of the defendant. If the commentator does not step aside from the work. and to turn them into ridicule. if they be censurable. the trial proceeded. others have a right to pass their judgment upon them to censure them. This would tend to the perpetuity of error. had the party writing the criticism followed the plaintiff into domestic life for the purposes of slander. ship. he exercises a fair right. Reflection on personal character is another thing. very valuable merits. or introduce fiction to the for the purpose of condemnation. for ridiculed. that would have been libellous but no passage of this sort has been produced. Lord Ellenborough " Every man who publishes a book commits himself judgment of the public. except as the author of the book which is The works of this gentleman may be." . 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. and particularly of the print affixed to it. otherwise. . — . In the present case.ii CRITICISM 47 if their compositions be ridiculous . The counsel for the plaintiff still complain- ing of the unfairness of this publication. After the Attorney. and even the caricature does not affect the plaintiff. the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it. or any attack upon his character unconnected with his author- ridicule. and legitimate . and any one may comment upon his performance. Show me an attack on the moral character of this plaintiff. if they be ridiculous. but whatever their aught I know.

although the author may suffer a loss from it. We The Chief Justice concluded by directing the jury. take the two actions of Strauss Francis (4 F. and they would award him damages accordingly. in that case he had a good cause of action. . It is. The Athenaeum published a critique on a novel written by the plaintiff." The fendant. I speak of fair and candid criticism and this every one has a right to publish. He checks the dissemination of bad taste and prevents people from wasting both their time and money upon trash." The down any vapid . the action would not lie but if they could discover in it anything personally slanderous against the plaintiff. the loss of fame and profits to which he was never entitled.48 THE LAW OF LIBEL critic n does a great service to the public. Such a loss the law does not consider as an injury because it is a loss which the party ought to sustain. who writes or useless publication such as ought never to have appeared. "That of if the writer of the publication complained " had not travelled out of the work he criticised for the purpose of slander. 939 and 1107). unconnected with the works he had given to the public. & F. describing it as " the very worst attempt at a novel that has ever v. ought to resist an attempt against free and liberal criticism at the threshold. in short. Nothing can be conceived more threatening to the liberty of the press than the species of action before the Court. case ended in a verdict for the de- Again.

as Lord Ellenborough pointed out. self-complacency. After Erie. were to make an attack on the private moral character of the writer. the plaintiff withdrew a juror . If a critic.J." and its abuse of persons living and dead.J. had summed up the case." and commenting severely on " its insanity. and the jury found a verdict for the defendants. C. stating their reason for consenting to the withdrawal of a juror. C. But you must ..ii CRITICISM 49 been perpetrated. or to make a defamatory statenot. The plaintiff then brought another action.' which means that there was a drawn battle. its profanity. had they gained a verdict. which was tried before Cockburn. and that each party paid his own costs. bad French. The Athenceum thereupon published another article. There are limits to the right of criticism. which was. unconnected with his authorship. in reviewing a novel or a poem. jump to the conclusion that you can write anything you like about a book or a play with impunity. from these two victories of the press.. and vulgarity. in fact. its display of bad Latin. that they considered the plaintiff would have been unable to have paid them their costs. its indelicacy (to use no stronger word). bad German. and bad English.

For it is false assertion. it is an on and can only be its by strict proof of truth.50 THE LAW OF LIBEL of fact about n {e. If. the entirely on gambling. and Mrs. comment on anything it is a . the other hand. Herman Merivale wrote plot a play called of which turned of an elderly The giddy young wife baronet is inveigled by a foreign .g. would clearly unfairness. which would not the reader's opinion of the book for play. imputing But a misstatement which con- be no ground veyed an entirely false impression as to the whole motive of the book or play would be clearly unfair. Mr. I will give you an example of this. unless it obviously an im- material slip about a mere detail. The Whiphand. will be for the jury to consider or whether this does does is not render the criticism unfair. a critic makes any misstate- ment of fact about the book or play he it is reviewing. he could not claim any protection for this as fair comnot ment if it proved to be untrue. A or slight affect unintentional error. not an expression of opinion at all ordinary unprivileged justified libel. . ment him as an author that he was the writer of some other book or play notorious for its immoral tone).

The defendant published a criticism on this play.production of Mr. the good male genius. until one rises in protestation against the loving.ii CRITICISM till 51 adventurer into constant vingt-et-un. " the The of foreigner. commencing thus : joint ." would convey to any one who read the review. hav- whiphand " Lady Felton. which she cannot pay. but who had not seen the play. There not one word in the piece to which the most squeamish moralist could object on the ground of its indelicacy. the Mrs. loses she £5000. confiding. "The TVhiphand. and Merivale. Justice The on 3rd and 4th March 1887." came on for trial before Mr.P. Herman fatuous husband with the naughty wife and her double existence. the limp aristocrat. induces her to assist in inveigling others to and is finally to connive at his cheating. whose duties as an M. compel him to spend his evenings in the House of Commons. All this is a secret from her husband. that The case Field . taken in connection with "wife" and "fatuous husband. and the villainous foreigner. . " naughty plaintiffs alleged that the word was here used in a slang sense and. ing thus play. gives us nothing but a hash-up of ingredients which have been used ad nauseam.

They also complained of the imputation that the play was not original. 20 Q. 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. Carsee that the right to is son.D. It was admitted that the defendant bore the plaintiffs no illwill. The jury found a verdict for the plaintiffs for one shilling damages. The defendant. and discreditable to authors of good literary position and repute.' 275). on the other hand. Hence you on all comment ^ matters of public interest restricted . such a slip of the pen would not make the passage libellous. but the judge refused to deprive the plaintiffs of their right to costs.B. There was no special damage.52 THE LAW OF LIBEL n the plot turned on adultery. having previously inserted very favourable critiques of their works. and that the play was of low moral character. conveying possibly to some an erroneous impression of the play criticised. Court of The verdict was upheld in the Appeal (Merivale and Wife v.

143). 1 But as a rule there is not Q. (c) They must not exceed the limits of a fair comment. L. and the public institution.. (b) I will deal with each of these heads separ- ately. interest what are the matters of public on which every one has a right to ? comment This is a question for the judge. The words which he published must be some matter of public in- They must be the expression of an opinion. much difficulty about it.J. such as the all policy of the Government. 53 within certain thus : We may sum them up. In order to relieve the defendant from liability. and not the jury (per. and not the assertion of a fact.Lopes. 1894. at p.B. (a) fairly relevant to terest. The public conduct of every public public concern . (d) They must not be published maliciously.n FAIR COMMENT limits. management Every man has right to express freely his honest opinion on all matters of general concern. our relations with foreign coun- . (a) First. Government ap- pointments. man so is is clearly a matter of the conduct of every of every a perfect public body.

54 THE LAW OF LIBEL the n conduct of all public officials. other appeal to the public to purchase goods or shares. Then. book. school board. the collection and expenditure the rates. on all matters of local public interest. the sanitary condition of any populous district. or performs a . . invites public if fair criticism thereon is and such criticism. or any no libel. flower-show. or public entertainment. and even the conduct of the audience. again. or the prospectus of a public company. all officers of the borough or county or of the rector of the parish or. all proposals for reforming our laws or reducing tries. and honest.all measures adopted or proposed for adoption by the town council. national importance Nor need such matters be of you may freely comment . taxation. and the administration of justice in our law courts. But the critic or article -writer must not follow even a public man into his . any man who publishes a the conduct of . all county or municipal affairs.g. e. on the speeches made at any public meeting. the administration of the Poor Law. vestry. therefore however severe its terms may be. on any concert. or play. exhibits a picture. or sanitary of authority. So with any tradesman's advertisement.

and those which it does not. Q. 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. published a correspondence which had passed between the plaintiff. to the annoyance .E. in particular. 699. and one of his churchwardens. L. for instance. Liverpool. which is addressed to the public generally. who was the incumbent of St. Tinling. One of the letters written by the churchwarden contained the following passage : "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. however famous or notorious.n private life. Take the case of Kelly v. George's Church. There. 1 not always easy to draw the ever. A newspaper. should deal only with matters which are of general public interest in the locality in which that newspaper It is circulates. howbetween matters which the law deems of public interest. FAIR COMMENT 55 He the private affairs of ought never to pry into any individual. line.B. and money being jingled about in giving change. the Liverpool plaintiff's Daily Courier. without asking the permission.

It was also proved that the plaintiff had had a potato.. cooked in the vestry between two services..E. n I of Nor can omit to allude by turning a portion of it into a cooking apartment. if not also a chop. or contempt is a Although that is true as a general rule. Anything which is calculated to libel. because there was not time for him to go home to dinner. yet it . 689). . 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." 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. As you make use of St. it becomes my painful duty to request that these improprieties to the desecration of the church may cease. 1 Q. though the plaintiff had put a stop to this as soon as he heard of it. George's Church for a number of purposes for which it was never intended. and endangering the sacred edifice. L. Sherlock. which I am bound to protect. : 686. hatred. bring a person into ridicule.B. These observations were as follows "The first question you have to decide is whether the publications were libels according to the law's definition of a libel.56 THE LAW OF LIBEL many of the congregation.

circumstance attaching to his position. although he may express opinions that you may not agree with. So also is it matter of public interest. the subject of comment but only when the . therefore. he has done it fairly. and the way in which the church is used they are all public matters. the defendant was at liberty to disIf cuss the opinions or proceedings of the plaintiff. No is — — — . may be discussed for the benefit of the public. whether in a newspaper or not. And.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." The jury returned fendant. have already told you. 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 may be publicly discussed. provided a man. the administration of justice in our law Every courts is a matter of public interest. the dispute between the plaintiff and his organist. then he is not the fit subject for an action for libel. and calmly. publishes a comment on a matter of public interest. I As judicial proceeding then may properly be made . an admiral with his fleet. — — doubt. though unpleasant. A clergyman with his flock. temperately. and if any part of his public acts is wrong he must accept the attack as a necessary. fair in tone and temperate. In this country everything. and a judge with his jury we are all of us the subjects for public discussion. a general with his army. either by speech or writing. a verdict for the de- One word of caution as to comments on judicial proceedings.

and impartial judgment. Any comment although the pending action able is a contempt of Court. lest the minds and indeed of the judge also. its progress. No observations are permitted during of the jury. though acquitted. Thus. A comment is the judg- ment passed on what took place by some one . was really guilty. and must not recklessly assail the characters of others or impute to them dishonourable or criminal conduct. And the be carefully observed between the reports of the proceedings and the distinction should leading articles or other A report is the record.58 THE LAW OF LIBEL not before. should be influenced thereby. in a more or less con- densed or abridged form. article respect be written temperately. of something that actually took place. there still are limits to the article- freedom of criticism allowed. or to insinuate that a par- ticular witness committed perjury. punish- by fine or imprisonment. comments on them. honest. published after the trial the case is is And The after over. and be in all other respects such an article as might properly be ended. and with due to the Court. it is not a fair comment on a criminal trial to suggest that the prisoner. writer is bound to exercise a fair. n trial is over.

. and the two things.ii FAIR COMMENT 59 who opinion about of others. has considered the matter. are not libels at lasts on matters of public interest. the words complained of must be the expression of an opinion and not the assertion of a fact. they should not be made as part of the report. (b) Next. all. As Lord Campbell once remarked. report and com- " If ment. where a trial more than one day. If you state as a fact a official or a candidate for that Government Parliament did a certain act which he never did. So again. such conduct would have been a matter of' public . fair comments. and formed an it which he states for the benefit These are clearly quite distinct and separate things. The report should be confined to what takes place in Court. and should be kept apart in the paper. should be kept separate. Different legal principles apply to the two kinds of composition for whereas fair reports are (as a rule) privileged. then the fact that if he had done it. any comments are made." This distinction runs through the whole law on the subject. but no comments may be made on the case till the trial *— is at an end. daily reports of the if proceedings may be published.

Burnside. 4 L. illustration comes v. This distinction was very clearly pointed out by the Irish Exchequer Division in the upon anything. case of Lefroy v. from the Cape Davis and Sons of a 'daily Shepstone. will even of a public man ! Comment on well- known or admitted facts is a very different thing from unsubstantiated assertions as to matters of fact upon which you propose to comment. 11 App. It does not mean that a man may invent facts.E. statement. not exist. interest. called There the appellants were the owners newspaper Hie Natal . paper actually has no right to publish lies." An 187. Such assertions are not comments They are not comments at all. "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. Cas. at 565. and comment on the facts so be a fair and bona fide manner the facts were true. If upon which the publication is . . or pay damages. however.Ir. A newsyour words true. p.60 THE LAW OF LIBEL i You must prove not help you. of this rule assumes the matters of fact commented upon to be somehow or other ascertained. invented in what would on the supposition that the facts as a comment sought to be excused do the foundation of the plea fails.

They vouched for the truth of these stories. Then they proceeded. to comment on offensive in the respondent's conduct in most Xatal. though some doubt had been thrown on them. the in British Resident Commissioner assaulted Zululand.K.„t'. on the assumption that the charges were true. and injurious language. it was the proved tion. declaring that. that the damages were not excessive. the Judicial Committee of the Privy Council held that such defamatory charges were in no way privileged. 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.s. etc. he had set on his native police to assault and ahuse other Zulu chieftains. that In particular. At the trial on 4th September 1883. and that no . that they were not fair comment on anything. On appeal to this country. the official which they constantly attacked conduct of the respondent. they asserted that he had himself violently a Zulu chief. they would prove to be true on investigation. and a motion for a new trial was refused by the Supreme Court of Natal.II FAIR iu COMMENT 61 Wit.

There public acts of a public man may comment or criticism and allegations of fact. that would be the assertion of a fact. But if I say that A asked you a question. that it is really only a comment on some assert a fact other facts. a 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.62 THE LAW OF LIBEL for n trial. the acknowledged or proved acts of a public man. L. . or discreditable language used. and yet you will find. ground was shown Herschell. or an inference from them. if you study its context. If I say you are " not straightforward." sim- pliciter. and you replied " Yes " to it that the next day you were asked the same question by B. and told him " No " and then . But the distinction cannot be too clearly borne in mind between tiated facts for comment. and quite another to assert that he has been guilty of particular acts of misconduct.C. but by all members of the public." But sometimes a phrase may appear to when you take it by itself. even with severity.. It is one thing to comment upon or criticise. such as that disgraceful acts have been committed. without more.

or for which I must establish a privilege. And there is common sense in this. if I state a bare inference without the facts on which it is based. is is not straightfora ward. . and then give my inference. it will. if facts and comment all relate to the preceding facts a matter of public interest. my inference will be treated as an allegation of fact." then that AB is a swindler. making it clear that it is my inference from those facts. If I make the I bare statement that " " a liar. that comment on and if the preceding facts he correctly stated I need not prove my comment true. for themselves whether my readers can judge my opinion is well founded or not." or is not an inference from anything or a comment on anything. But if I set out the facts correctly. For if I set out the facts on which my opinion is based. But if rectly. be deemed a comment. if I am to escape paying damages to A B. do not state the facts.ii FAIR COMMENT 63 I add that such conduct last observation . It is just an allegation of fact which I must prove true. as a rule. In other words. or state them incorthen I do not enable you to form your own opinion on the matter. They may see no harm at all in the conduct which I condemn.

Justice Crompton said in the case I dwelt on at the beginning of this lecture [Campbell v. it judge has decided (and appears that it is for him and not the jury to decide this) that the matter commented on is one of public interest. 3 Best and Smith. whether it be the conduct of public men or tion about the proceedings in Courts of Justice. the more difficult question arises. " Is the com- ment on fair it a fair one ? " This is a question so clearly for the jury. " than that fair and full latitude of discussion should be allowed to writers upon any public matter. but to leave the jury to decide " Nothing is each case on its own merits. 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." as Mr. or in . more important.64 THE LAW OF LIBEL (c) n limits Then the words must not exceed the As soon as the of a fair comment. Spottisivoode. 778). at p. and their finding has been approved by the Court. unless the comment is and legitimate that there can be no quesit. Possibly learned judges have thought it best not to formulate any definition.

limits are which must not be it is overstepped to lay probably because impossible down any general rule. but honestly states his genuine opinion as to the book or play on which his criticism is invited. and makes no false assertion of fact about either. 20 Q. But later judges have thrown much light on the matter. I spoke just now about the Well." CRITICISM 65 Parliament. then it is very difficult to say when It the bounds of fair criticism are exceeded." tell The learned judge. You will find there all the law there is on the question What are — ? the limits of legitimate criticism (Merivale and Wife state it I may Carson. 275). : attack on the author apart from his work. the judgplay called The Whiphand. does not proceed to us what the . or the publication of a scheme. thus So long as a critic makes no v. A not entitled to overstep these limits. ments delivered in that case in the Court of Appeal are most valuable.B. You should read them most carefully. is clearly not necessary that the jury should . left to a But it is always to be jury to say whether the publication fair has gone beyond the limits of a comment writer is on the subject-matter discussed. or of a literary work. however.D.

however prejudiced he may be. opinion expressed may be in point of truth. 280 : prejudice. states the criticism unfair. have said that which this criticism has said. it may still be within The question which the jury the prescribed limit. sufficient care or law thus on " p. 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. M.. too. have come to that conclusion about then and then only are they to find for the I think this decision is eminently plaintiff. think the criticism published by the de- fendant was such that no sibly fair man could posit. sound others with may The jury are not to be asked whether he formed this opinion on reasonable grounds. the comment unfair. after looking at the book or the play. even gross exaggeration.R. or however prejudiced the writer. geration. the fact that his words are strong or even intemperate is not enough to make his Lord Esher.66 THE LAW OF LIBEL . satisfactory. both as protecting authors from ." make Mere exagwould not However wrong the : — If the jury. must consider is this Would any fair man. n agree with the critic his he is entitled to publish own opinion. So. however mistaken or unthink it. however exaggerated or obstinate his views.

and at the as same is time to affording every reasonable protection that liberty essential to the of speech which honour and integrity of the press. fair Hence it is possible that comment should yet be published Suppose. A writes a book or a play which is severely criticised in the Times. is nevertheless a fair comment on the play.D. instance." refers to the language employed. that A and B are both suitors for the hand of the same young lady.B. is delighted. The word " fair.. and he sends a copy of that issue of the Times to the mother of the young lady. Carson. (d) Lastly. Will an action lie for this malicious publication of what all the time is a fair comment ? I think it will. for maliciously.K. 20 Q." in the phrase " a fair comment. though severe. . The criticism.ii FAIR COMMENT deliberate 67 all misrepresentation. and there is some ground for that opinion in the dictum of Lord Esher. It honestly expresses what the critic on the staff of the Times really B reads this. at p. and not to the mind a of the writer. in Merivale v. M. the defendant must not have acted maliciously in the matter. and thought of the production. hoping and intending thus to injure his rival.

if he satisfies the jury that his words were fairly relevant to some matter of public were a fair interest. But in the absence of any such express malice the defendant will be entitled to judg- ment in any action of libel. but it does not follow that you are entitled to stab your foe in the back dagger may with it. and that they the comment on that matter. . and honest a false statement as to not some matter of fact. though the point far from A be a perfectly legitimate weapon to use in fair fight.68 THE LAW OF LIBEL is n clear. 281. expression of his own opinion.

You know. libels defamatory of some person. if you prefer a longer phrase. attention to to written and we will on an inor printed words .Ill CONSTRUCTION AND TRUTH Construction lectures have. 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. I trust. when their obvious tendency . too. all actions of slander of or trade-libel. So. we a libel . our i.e. at all events. Now I told you that words were defamatory when they injured some one's reputation. will put on one side henceforth title. when they made people think worse of him or. Those of you who attended my two former some idea now as to what is. or actions on the case for malicious injury confine dividual. .

70 THE LAW OF LIBEL to bring in is him into ridicule. But tion. libeller. unless his reputation be injured. And lies. People will the defend- not think worse of the ant's or if their words are unintelligible defamatory meaning is so hidden that no It is not enough third person can detect it. not the good opinion which he has of himself. as a rule. and underFor. hatred. told you when we were dealing with publication. or con- tempt. as I stand them in a defamatory sense. Some must understand them. if . a man's reputation is the esteem in which others hold him. and leave readers to draw own conclusions. For those to whom the words are published put the blackest . plaintiff. no action Now desires it often happens that a person who he to injure the reputation of another all has not the courage to say out boldly means. This requires also. to drop a hint here and an insinuation there. that the plaintiff perceives the meaning of the words and third person feels their hidden sting. before words can injure a man's reputa- they must be understood. his He prefers to wrap their it up. less pluck in the and does more harm to the reputa- tion of the person attacked.




construction on these dark hints and often indeed a blacker one than the libeller intended to convey.

But that does not matter
secret intention

in the least.


of the writer


material, if his words reasonably convey that

blacker meaning to his reader.


cannot be

heard to say






only intended to sug-

gest that there was something like a going on between Mr. A and Mrs. B



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


himself in such misleading phrases.

He should

have stated




he has by his ambiguous hints injured the reputation of two innocent persons, and he

must pay damages. That is always the



Has the reputation
if so,

of the plaintiff in fact been injured, and,

what extent




depends on how

third persons understood the defendant's words,

not on


the defendant meant third persons

to understand them.

A man


says or

writes nasty things about others cannot com-




neighbours take him to mean




what he says. pose he meant



the other way.
so darkly that


to convey something very unit

pleasant, but hinted

understood what

he meant

malicious the defendant


no one however then, have been, no

action lies against him, because the plaintiff's

reputation has sustained no injury.




with a grave face

praised a good





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,
; ;





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

selves properly.

Then, again, you must be very careful how

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.




that Mr.

Donoghue had been

tected taking dead bodies out of the church-

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.

gruesome joke at the best
been born in Ireland,
that he was joking.



could_not have




did not

appear that any of the bystanders understood


the Lord Chief

Baron said






that a

person shall not be allowed
other's reputation in jest.

murder anBut if the words

be so spoken that



obvious to every byis

stander that only a jest

meant, no injury

done, and consequently no action would


It does


a writer intended to convey.
to his

not matter therefore what meaning It may be that

but language was harmless if his readers reasonably attached to it an injurious meaning, he is liable for the ambigu-


ous phrase which he so injudiciously selected.



these cases the only question



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.




which a plainhas recovered damages for words which,
cases are reported in

prima facie

at all events,


innocent or



an old case in which

the Court

a merchant, "

say of hath eaten a spider," was " actionable with a proper averment of what

solemnly decided that to


the meaning


This was decided in the

1636 (Franklyn

Butler, Pasch.


But the report does not vouchsafe any explanation of the meaning of this extraordinary phrase and I am unfortunately not

sufficiently proficient in the slang of the


of Charles


to be able to

throw any light on




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



know not


denote that the at-

torney in question had taken a fee from both

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

and could







and he refused to allow the plainto be asked what the word " bunter

Again, there


be cases in which the
it is





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




can sue on


charge which



against mankind

in general.

said in 1858 in the case

As Willes, of Eastwood v.




F. at p.

349), "If a


plaintiff in the .76 THE LAW OF LIBEL all in wrote that cular lawyers were thieves. there is no libel for no man's reputation has suffered. 837). For the Court must see that the words do not and cannot mean it. " Suppose the words to be 'a murder was committed in A's house last night. no parti- lawyer could. If no one can tell what the words mean. If no one can tell to whom the words refer.' 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." ' ' accordingly. unless there is something to point to the particular in- Or take the instance suggested by Lord Denman in Solomon v. Whenever it is not obvious from the words is themselves what who is the person referred to or the imputation cast upon him. sue him." In short. the difficulty may be got over to some extent by . words will not be libellous unless they convey some definite imputation on some and that person must be the action. and would arrest the judgment dividual. libel on the plaintiff. for his reputation at any rate has not suffered.B. Lawson (8 Q. there is no definite person.

" Thou (meaning thereby the plaintiff) art a ' daffodowndilly. stat- ing what he understands the words to mean. whenever the words are prima facie harmless or prima facie meaningless. days a term generally known to the law. Rawlings might have won her action for with an innuendo evidence of the meaning of that strange word would have been admissible. though now almost as incomprehensible as the word which it sought to explain. he would plead that he (the plaintiff) was a stockbroker. Hence." the pleading in fact ran. had there been a proper averment in the pleading to explain what meaning the word "bunter" conveyed in the year 1858. was in those So. and that " the defendant falsely and maliciously wrote and published of him the words He (meaning the plaintiff) is a lame duck." a phrase which. which is called an INNUENDO his 77 the plaintiff's inserting in pleading an averment. in the case of the " daffodowndilly.' plaintiff meaning thereby that the was an ambidexter. if you . .' 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. Thus. too. Mrs.

10 Q.78 THE LAW OF LIBEL in are counsel for the plaintiff and plead an innuendo Claim. found an instance of a very wild innuendo in the law reports of Massachusetts. in you must be sure your Statement of But the innuendo must be a reasonable it must be in accordance with the facts. . The words were " I was speaking to a lady about Mrs. 1875. Cole.E. : : ! . defendant's I what was in fact in It must not be too far-fetched. In that case the plaintiff L. York) had been guilty of adultery " That innuendo was disallowed. ing of the defendant's words.B. as was done in Mulligan v. 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. The innuendo can only be used to evolve the true though latent meanone . If the judge thinks the words are incapable of that meaning he will stop the case. and not an invention of an imaginative attorney's clerk. to the Court and the jury make clear to the mind. 549. York's case " and the " innuendo was meaning thereby that the plaintiff (Mrs.

Mulligan's con- nection with the Institute has ceased. and he then started. defamatory meaning attributed to it by the And the full Court of Queen's ." and of. and had been master at the Walsall Science and Art Institute. His engagement there ceased in June 1874. Wajsall Science and Art Institute. J. and became master another school which was called " The Walsall Government School of Art. signed by the defendants. and secretary of the Institute. which he opened in August INNUENDO 79 was a certificated art master." . The '" — public are informed that Mr. This case is very similar . treasurer. on the ground that the advertisement was not capable of the innuendo.. and that he is not authorised to receive subscriptions on its behalf. directed a non-suit. In September the following advertisement appeared in the Walsall Observer. Bench held that the non-suit was right that the advertisement was not capable of any defamatory meaning." The declaration advertisement with an innuendo — set out this thereby that the plaintiff falsely meaning assumed and " pretended to be authorised to receive subscripAt the tions on behalf of the said institute. who were respectively the chairman. trial Quain.

has tried its wellstill meant— attempts it is to amend our But the same in substance. — — rolled by. Limited). After all. for instance. Company.. a home product. "the office of an innuendo" is nowhere more clearly or better defined than in the old case of James v. and to those . old tree It is the same though the trunk be thicker. decided so long ago as 1599. all too. which has grown and developed with the English race. is I like to quote to no new system recently inventedthat it is not a Code Napoleon. And that is why it constantly happens that for a clear exposition of the meaning of some of our best-known rules of law. they are sprung from the same root. . p. though the branches spread farther. Parliament. 17. o). Rutlech (4 Eep. Fine Arts and General Insurance ante.80 THE LAW OF LIBEL in first to one which I mentioned in my lecture (Nevill v. 10. we must turn back to the days of Queen Elizabeth and James I. imposed by an emperor on an unwilling people but a thing qf our own. in various 'prentice hand —and no doubt law. Able judges and learned lawyers have done their best to improve it and strengthen it as the years to you these old show you that our law cases occasionally.

certum reddi non potest. . in pleading. which are styled par excellence "Eeports. Still. but is altogether uncertain and subject to deceivable conjecture. If the words refer to nobody in particular. because no one's reputation has been injured.111 CONSTRUCTION 81 volumes of Lord Coke's. the cleverest innuendo will not enable any one to succeed in an action. if the defendant's meaning could not be discovered for certain from his words and acts. . And this is how the Court of Queen's Bench stated these propositions in the days of Queen Elizabeth : "An innuendo cannot make a person certain who was uncertain before. If the words are in their essence loose and vague. 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. precision. it was not capable of being made certain at all." and " as an innuendo cannot make the person certain which was uncertain before. or from the surrounding cir- cumstances. so an innuendo cannot alter the matter or sense of the words themselves. G ." In those days there was " certainty " —that : much talk about is. no innuendo can make them definite." . And they were very fond still of a legal maxim which holds good Id certum est quod certum reddi potest.

J. state And he can his friends and acquaintances they read them. (i. stealing yarn now. In a recent case (Hird Wood. 38 Sol. for that objection has been long got over. 234) the plaintiff complained . : As Lord Hardwicke libellers of said in 1742 "All the the king- dom know now that printing initial letters If asterisks be will not serve the turn. or The person merely his initials given. : putation. It is sufficient if the reader can ascertain who he is. those who know him that he call is are able to gather from the libel the person meant." may from the context that what he is really means that a particular woman has been v." stead of the plaintiff put in- name of the person libelled.82 THE LAW OF LIBEL 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. He may be referred to by a nickname. the if can sue. " I have it known women clear yarn before. as witnesses at the trial to how they understood So steal if the words when be a man write.) CERTAINTY AS TO THE PERSON DEFAMED libelled need not be named.

And the plaintiff satisfied the jury that he was the " one man " referred to by calling witnesses who had read the placard. that brother but if the words were. words which at only to refer to of B. and had at once concluded that it referred to him. no one of them can sue. and there is nothing to show which one is meant. first sight appear A may yet be also defamatory Thus. every member of a certain body or class. or partner can sue . unless there are some special circum- .in CERTAINTY AS TO THE PLAINTIFF 83 of a placard which had been publicly exhibited in the neighbourhood in which he lived. Again. It ran as follows " Subscriptions for and B." etc. : A who have been ruined in their business and their living taken away by the animosity of one man. then one of a certain each or all number can sue." and A has several brothers. if a man libels A's brother or A's partner and A has only one brother or only one partner. no action But if the words reflect on each and lies. " One of A's brothers is perjured. Thus. to assert that a is man is illegiti- mate a charge of adultery or unchastity against his mother. If the words reflect impartially on some or class.

person addressed had more than one master name of Brown. So " if a man Thy master Brown has robbed me. if the defendant . one by each of them. where a newspaper article imputed that " in some of the Irish factories " cruelties were practised upon the workpeople. men who had So where a party in a cause said to three just given evidence against him." But if the defendant said to a master. " said. "Thy master" simpliciter or "Thy father" or to a wife. of thy servants hath robbed me. show to which one the writer says to the plaintiff's servant. Still a general imputation on a class may yet really refer solely or specially to some particular member of that class. of But had he said." Brown . " Each three you is perjured. can sue of the for it shall not be intended that the So. Thus. to a hus- band." or." it was held that no action lay. "Thy . " One of you three is perjured. " You are all perjured. One ." in the absence of special circumstances no one could sue for it is not apparent who is the person slandered. the plaintiffs. who were .84 THE LAW OF LIBEL to in stances referred. had son." three actions would have lain.

for the reputation The defendant is blame If for expressing himself so ambigu- ously. " in the factory of the plaintiffs. 637). both eminent. it . Or. each arrive at the conclusion that the words were aimed at their particular friend.L." There are several eminent Q. and found a verdict for the plaintiffs and the House of Lords upheld the innuendo and the verdict (Le Farm v. Suppose the friends of two different Q. set out the words iu their pleading with an innuendo.C. to I think both Q. Can both CERTAINTY AS TO THE PLAINTIFF 85 Irish manufacturers. if you will allow me to invent a case. suppose a newspaper published a libel on "an eminent Q. honestly arrive at their respective opinions. A brings an action and satisfies the jury that that many persons reasonably understood I do not see would be any defence for the defendant to try and show that many other persons reason- the words to refer to himself.s can sue.C.s.C. of both has been injured. Malcolmson.C.s sue? Or neither ? Or if only one. if both sets of friends reasonably and .C.s." The jury were satisfied from the evidence called before them that the newspaper was referring especially to the plaintiffs' factory.C. which ? Well. 1 H.

whether they be spelt correctly or incorrectly. a jury can judge of the meaning as well as any other person reads who them. and the illusion may .) CERTAINTY OF THE IMPUTATION So long as the defendant's words are not absolutely unintelligible. or in any other language that is understood in England. it may may . Still. be disguised still. whether slang terms be employed. be ironical." every one will understand such . or the most refined obscure. the Court If a man be compared to "Judas.C. or allegorical. All obscurity will disappear under the severe scrutiny which the words will receive in a court of law. whether the phrase be grammatical or not. The insinuation may be indirect. to sue. in a riddle or in hieroglyphics if there be a meaning in the words at will find it out. It matters not whether the defamatory words be in English. be put as a question or as an the language figurative.86 THE LAW OF LIBEL in ably supposed that the words referred to B. all. I should advise any friend of mine so libelled to be the first Q. it " on dit " and elegant diction. (ii." or to "the impenitent thief." or "Ananias.

I myself was once paid to read The Strange Story of Dr. And . Gammon. If in one part appears something to the plain- . and Snap were if equalled. Counsel. a copy of Ten Thousand a Year was put in at the trial and taken as read. 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. who had been fairly solicitor to " Messrs. They should look at the context. with the words. In 1848 Miss Hoare re- covered damages because Mr. and a copy of Mr. not outdone " . Jekyll and Mr Hyde . of course. " when the Morning Post concluded an attack on the conduct of Mr. Stevenson's book accompanied my instructions. And they should always read the whole letter or paragraph before deciding that it is a libel. Silverlock wrote a letter to a newspaper. in which he said that 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. Hyde. Lord Egmont. some one had compared a virtuous plaintiff to Mr. "Woodgate. CERTAINTY OF THE IMPUTATION 87 allusions as those.

" the bane " and . where a correct report of a certain trial was published in the Observer with a heading. So. 702). So a word at the end of a paragraph may alter its whole meaning. Take. for instance. Boydell. credit. 3 B.88 THE LAW OF LIBEL in another in tiff's credit. but judge of the publication as a whole. Boydell recovered judgment in 1838 for a paragraph which apparently gave an accurate account of something that had occurred in Judge's Chambers. too. & Aid. something to his dis" the antidote " should be taken together they may be found to neutralise each other. and they clearly referred to Mr." It appeared from the con- text that these words were meant ironically. the paragraph which appeared in the True Sun newspaper on 18th December 1832 :— . but which was headed " an honest lawyer. sometimes in a heading or catchword prefixed to a paragraph otherwise unobjectionable. Clement." the Court held that these words were a libel. The jury should not giving its dwell on isolated passages. though all that followed was privileged (Lewis v. " Shameful conduct of an attorney. Sometimes the sting of a libel will be found in its tail. Mr. proper weight to every part.

" brought his action. who is committed to gaol. " the Eadical. At the trial the discus- sion mainly turned on this concluding word. In the affray Hunt had his nose cut CERTAINTY 89 " Riot at Preston. as the plaintiff alleged. . as the defendant conlibel.' The mob fell upon him and murdered him. Was it inserted honestly in order to vindicate the plaintiff's character from an absurd and preposterous charge.From the Liverpool Courier. and said. & P. and Mr. and it was certainly untrue. a verdict which 245). Without that word it was clearly a libel. it in order that future day as might be referred to on a showing that the defendant intended to discredit the story ? The jury were puzzled. The coroner's inquest have brought in a verdict of wilful murder against Hunt. tended it ? If so. and in the end they awarded the plaintiff one farthing damages. Hunt. there was no Or was merely introduced. There is one of the black sheep. Nothing of the kind ever happened. appears that Hunt pointed out Councillor Seager to the mob. Fudge It ' — — — ! This paragraph had appeared without the word " fudge " in the Liverpool Journal (not the Conner) four days previously. in those days carried with it one farthing and no more for costs (6 C.

90 THE LAW OF LIBEL In short. 7 App. if it is and reasonably conceivable that This was proved. it does not matter how was expressed. The defendant said to an " upholsterer You are a soldier I saw you in your red coat doing duty. any evidence to go to them of such provided also such facts.D.P. provided there be facts. decided in the leading case of the Capital and Counties 5 C. 741. hidden ironical phrase. would have induced the reader so to understand the words. Here is an instance in which a defamatory meaning lay hidden under words which seemed perfectly harmless. a further question may arise — Were there any known both to writer and reader which would lead the in a secondary is latter to understand the words ? and a defamatory sense This a question for the jury. suggested adjective. by a question or a mere' If the under a nickname or some words in their natural still and obvious facts meaning are harmless. men to sham enlisting so as to avoid being . Cas. if in a defamatory imputation be in it fact conveyed to the reader." These words do not appear to be actionable till you learn that it was then a common practice for trades: . Henty and Sons. 1880. 514. Bank v. It may be hinted or implied.

( In another case Williams v. Scott. words in a document. Limited. But they thought fit meaning from the place to place it at the threshold of the " Chamber of Horrors. Maybrick. 1 Q. Pigott. Tussauds. was an excellent likeness of him. Again. which was exhibited by the successors of Madame Tussaud. Johnson. Hence the Court held that it was open to the jury to find that the defendants intended their visitors to draw from these surroundings an inference injurious to the plaintiff {Monson v.B. 10 Mod. it On the other hand. Smith. or may acquire a defamatory in which they stand from the position in which they appear. that judgment had been recovered against the plaintiff in the County Court for £27 : CERTAINTY 91 The words were therefore held actionable as damaging the credit of a trader {Avne v. 111). and 1894. had not . Monson. they did been.B. 22 Q. what was perfectly true." and in close prox- imity to images of Mrs. was the been not say fact) that the They did not say (what judgment had since But they published satisfied.D. arrested for debt. 134) the defendants published. 671). I am informed that the wax model of Mr.

the best singers being usually placed less either first or last." 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. 12 But in all these cases. 1896. reputation middle {Russell Times L. in the and those of v. or to pay his just it debts. 195). make the matter Contrast these two cases.92 THE LAW OF LIBEL in a in Trade Gazette. there is. So Miss Ella Russell recovered £100 damages because her name was placed in the middle of the programme of a concert. Notcutt. by the side of " Bankruptcy Notices. Evidence was called at the trial to show that in the musical world the order in which the names appeared conveyed a particular meaning." and items as to "Bills of Sale. whereas it should have come first. or who is the person referred should always be an innuendo inserted in the plaintiff's pleading to clear. " Did he have a fire twice ? He is a funny fellow " ! and the Statement of . In one the words were. and the defendant had undertaken to place it first. whenever it is not obvious from the words themselves what the imputation to.B.

155). for there was nothing to show that the words imputed a crime (Jacobs v. In another case the plaintiff's house had been insured when it was burnt down. 169).in INNUENDO . Cutler. 121 6 Times L. with the aid of an innuendo.E. but ultimately paid it. said. " I never set my premises on fire " . 62 L. 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. established these facts. the plaintiff.T. the insurance company at first demurred to pay the insurance money. and " I was never accused of setting my premises on fire. The defendant subsequently.P. In this way." These words were set out in the Statement of Claim with proper innuendoes. . in the presence of others. and they were held to be a slander on the plaintiff ( Cutler v. he has made out a prima facie case. and also that it was the defendant who published those words in print or writing. and that definite As soon as he has person must be himself. 10 J. in the course of a quarrel with . 98 Claim contained no innuendo at all it was held that no action lay. Schmcdz. . where necessary.

is There no necessity in an action of libel to traverse any allegation of damage. as a rule. if for no higher reason than this that the plaintiff can prove It is foolish. or plead an apology. he had better be honest and admit the fact. The denial of a material fact alleged called a traverse.94 THE LAW OF LIBEL in Truth And now we pass on to consider what is the defendant's answer to the plaintiff's prima facie case. The defendant in his pleading will probably deny some. — the publication at the trial in five seconds. He may traverse statement that the words refer to the plaintiff. of the material allegations in the Statement of Claim. or the innuendo. of course set or up some affirma- defence he may pay money into Court. but that is a line of defence which seldom succeeds. an action of libel to For instance. or the Statute of . if the words It looks weak. or perhaps all. in deny them all. But tive in addition to all these traverses the defendant may . by the plaintiff The defendant the may traverse the publication alleged. just by putting is in a copy of the newspaper. really have appeared in the defendant's newspaper.

in TRUTH ' 95 Limitations. there is an end of the matter the plaintiff cannot recover damages because his reputation has been brought down to its proper level." a complete answer to the action. and also generally to prove to his listeners how wicked and absurd the law of England is. The onus of proving each of these defences Privilege for is lies on the defendant. If the . words are true. as though that law was something which did not belong to him. and It for which he was in no way responsible — ! . 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 . in the train this phrase : is proud and very fond of stantly refers to it he con- in order to display his knowledge of law. the greater the libel. But there still time the techIt is to deal to-night with the plea that defendant's words are true. is a matter which I will reserve my next lecture. : : greater the truth. however malicious the defendant may have been in writing the libel. This is nically called " a plea of justification." sort of The very man you meet. But the two special defences which are peculiar to an action for defamation are Privilege and Truth.

you may say. 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." Still it is not actionable. the greater the never had any application at all to civil actions for damages it was formerly the law : in criminal cases . as soon as they obtained employment anywhere. In former years prisoners used it fre- quently to complain that they found possible to earn an honest living. it does seem hard should be permitted to rake up some ancient misconduct. 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. Even in cases where the malice of the defendant is clear. Still.96 THE LAW OF LIBEL in is little while. im- when they came out of prison. but even there it was that modified. no action lies if the it is . I am glad to think that it has ceased. — for a The maxim libel " " the greater the truth. as we shall see. man and publish it to all the world years life. because. many years ago. afterwards. . police. amusing to hear that man talk law Of course he is all wrong. some youthful indiscretion a of mine. when I am leading a blameless So it is.

in TRUTH 97 defendant has said no more than the literal truth. the to with which a defendant is made is prove his plea of justification. unless he has specially pleaded in his Defence that He must prove that the the words are true. And he will not be allowed to try and prove this. it is for the defendant to prove that his words are true. the libel is false . and say too much and then his plea will fail. must be as broad as the charge." H This is " The justification . as a is rule. 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 . fence that they are half true. protection to a plaintiff . 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. or three-quarters He must go the whole length or subtrue. mit to judgment. a sufficient really for if a man making a statement. he is almost sure to go beyond the truth. what lawyers mean when they say. and must justify the precise charge. whole of the words set out in the Statement It is no deof Claim are substantially true. But.

on "to a p. 577. L. of Claim. alleging that the defendant had said the plaintiff stole a pair of boots. and that was Again.B. Smith in Rassam v." ." 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. LIBEL m The defendant cannot plead that he published other words than those set out in the State- ment true. that what the defendant said was that the plaintiff's footman stole the boots. 1893. but did not. to take the instance given A. If you have written and published of housebreaker. 1 Q. plea. prove that Or. to the charge actually made. said if true. He must go further and assert in trial his pleading and prove at the that the plain- . by Lord Justice Budge.98 THE LAW OF. a defendant may not plead Statement of Claim." the libel complained of be "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. and that such other words a defence for are say- Still less is it him to that there were other unpleasant things which he might have written about the plaintiff with The Court keeps perfect truth.

the defendant. the plaintiff test The always Did the libel as published have a different effect on the mind of the reader from that which . it. just as he pleases. and urge in mitigation of damages and that at the trial that A did really say foolish so. however. be sufficient. But if the words which the defendant cannot prove to be true are a material aggravation of the main imputation. A slight inaccuracy as to some if detail will not prevent his succeeding. he. if the decan prove that every imputation confendant tained in the libel is substantially true. is liable for his own defamatory words and the likes. The . was enough A. person defamed It will may whom he or sue no one. or insinuate some further charge in addition to will be entitled to a verdict. fact that the plaintiff his while to sue never thought it worth it wholly immaterial does not even affect the amount of damages.the actual truth would have produced ? We may illustrate this by contrasting two . is. Each man sue in turn . is to believe him. he must paymoney into Court. If he is not prepared to go that length. such inaccuracy in no way alters the character of the tiff TRUTH 99 had in fact been guilty of fraud.

or to three weeks' imprisonment in default of payment. 34 L. 152. tried in 1865. tried three years South-Eastern Railway Company.J. arrived at in the second case. Alexander v. 18 L. 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 breaking a by-law. Proof that the plaintiff had been convicted of that offence and had been sentenced to be fined £1. Gwynn v. travelling on the defendants' railway from . North . which stated that the plaintiff had been convicted of riding in a train for which his ticket was not available. 738. But a different conclusion was .B.Eastern Railway Company. and that he was sentenced to be fined £1. Q. 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.T. There the plaintiff had been convicted before the Lord Mayor of later. In the first case.100 THE LAW OF LIBEL in each of m cases. by placarding his name and address on the walls of the station. or to a fortnight's imprisonment in default of payment. the hbel complained of was a notice of this kind. was defendant.

in TRUTH to 101 London Bridge ticket. and had words "hard labour" in espeprominent type. ants fine seems to serious doubts as to the guilt of the plaintiff. Cannon Street without a and sentenced to a fine of one shilling imprison- with costs. the plaintiff had been so convicted and and describing the alternative as being " imprison- ment at hard labour. or in default three days' The smallness of the show that the Lord Mayor had ment. 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. yet the defend- published placards stating that fined. the jury thought they were not and as the railway company had thought fit to put the full tiff in name and address of the plain- large letters on their placard. Gwynn He con- tended that the words " imprisonment with hard labour " were not only inaccurate." On once sued the company for with this Mr. also set out the cially Although a plea of justification will not be . libel. the jury awarded the plaintiff £250 damages. The judge left it to the jury to say whether the defendants' words were really a substantially correct account of the conviction .

Two fathers were summoned before the same bench of magistrates on the same day. unless it justifies the whole libel. the other with not sending his Both were fined. 8 Times L. provided such part contains a distinct imputation which rest. can be separated from the times justify as privilege or fair So he may some- one portion. a forger and 58). and must convey a disand separate imputation upon the plainv. the defendant is sometimes allowed. One was charged with not having child to school. and plead comment to the rest. provided to the portion justified be fairly severable from the rest. 1891. for they are distinct and separate imputations. cannot prove the other . a complete to justify part only. you either of these charges may plead that though you true.E. you say a man is is an uncertificated bankrupt. But I remember an instance in my own practice some years ago. in mitigation of damages.102 THE LAW OF LIBEL III answer to the action. though I am afraid that strictly it did not apply. The newspaper reporter reported the facts of both . where I availed myself of this rule. intelligible tinct tiff To be fairly severable. it must be by itself. still. if (Davis Thus. Billing. his child vaccinated.

but by a blunder he interchanged the names of the parents so that the anti-vaccinator was reported as guilty of not educating his child. he said. for the blunder as to the name. the newspaper paragraph was a and accurate report of two judicial proceedings and I paid forty shillings into Court . the latter father did not seem to JUSTIFICATION 103 cases quite accurately. the sentence being that " AB was charged with such and such an offence. but the anti-vaccinator was furious. except as to the fair names. while the poor man who could not find the necessary school fees appeared as being fined for not vaccinating his child. I pleaded that. and offence the — usual might perhaps be allowed to the defendant. "Well. I the other side maintained that to cut the alleged libel Counsel on had no right up in this way . claiming damages because he had been misrepresented as a wieked father who did not ! this. was an I law of the land thought the action was a somewhat trumpery one one in which a little more liberty than educate his child against ." he contended that I could not sever the name A B from the . He commenced an action at once against the editor and proprietor of the paper.


of its sentence,


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

who were waiting



for their summonses " Suppose I wrote and said,

published the words
that as to the word
mistake, but that






Odgers here brought his action, could I plead







Odgers I had made a was true that Jones was he had argued his case in



way when we
some reason

got inside the judge's room,

think he would have gained his point






no doubt

shrank from giving the learned judge this telling instance. Manisty, J., obviously


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


attempts to give the

words a secondary meaning by the aid of an innuendo in his Statement of Claim, the de-




will be


plead generally that " the words

are true in substance


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




(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

the words without the innuendo, then he can never say at the trial that the words are true in the secondary sense ascribed to

them by the innuendo

and should the jury

think that the innuendo assigns to the words
their correct meaning, then his plea of justifica-

by the board it becomes an irrelevant plea. The words may be literally true but that is wholly immaterial, if the jury
tion goes



they conveyed





secondary meaning wholly distinct from their





See Williams


Smith, ante


if I called

a trader a



straw," that would
safely be given to

mean that credit could not him and I should not be

allowed to give evidence that he did occasionally deal in

hay and


Or, take this in-


If Mr.

Weller, senior, wrote to his

son that " the Eev. Mr. Stiggins drinks,"

would be

idle for


to prove at the trial



sipped a glass of water,

the jury think that

the words impute that he habitually drank
intoxicating liquors to excess.


in all these cases of justifying part only

of the words, or of justifying with or without

the innuendo, the defendant must always


quite clear on his pleading or in his parti-


how much he

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


Ix the


we began

to consider the

defendant's answer to the plaintiff's case.


dealt with the defence that the words are true.

To-night we must devote to the defence of
It is a defence to an action of libel if the words were published on what the law deems

a privileged occasion.


a rule, a




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


these are called

privileged occasions.



always a question of law for the judge
question of fact for the jury
particular occasion

—not a —whether any

privileged or not.




There are occasions on which the necessities
service or

the administration


justice require that the writer should enjoy

complete immunity
lege attaches.


to these

an absolute


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.

There are not


such occasions, and our judges are not

inclined to increase the number.



however, a


larger class of

occasions on which the privilege

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.

In such cases the plaintiff will

recover damages in spite of the privilege,


can prove that the defendant did not act in

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






it is for


plaintiff to

prove malice.
it is

In cases of absolute privilege, then,

because then I desire to prevent her getting a am it angry with her and good situation. that in plaintiff has prove malice It is order succeed in his action. in order to enhance the damages but such evidence is not essential to the cause of action. and that such privilege is not absolute. an action against a judge for words spoken on the bench. honestly believe to be the truth about her leged. will destroy the privilege. if proved. whether malice be alleged or not. because cases is not to absolute. hence the occasion is privi- But if I state what I know is not true about her. It is only in the to of qualified then. declines altogether to entertain the action. for for instance.: no such proceeding will be permitted. Take. actuated by maHce. to always useful prove malice. privilege. judge rules that the occasion of publication is privileged. It is* true that the word " malicious " is . it is my duty to state what I . 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. And such I am malice.iv PRIVILEGE 109 idle for the plaintiff to try and prove malice. if you can. until the . high reasons of State. The Court.

I say that the defendant pleads privilege. that they are not privileged. But this is a very technical. are malicious in To say that defamatory words that sense simply means that . it denotes merely the absence of any lawful excuse. use of the word . and that the older cases contain many in dicta to the effect that libel or- "malice slander. is the gist" of an action of all But is these cases the word " malice " used in a special and technical sense . is no part As soon as the judge rules that . malice of the issue. This is called " express malice " or " actual malice " in our older books. they are not employed under circumstances which excuse them in fact. that the pleader invariably introduces it into every Statement of Claim.110 THE LAW OF LIBEL iv usually inserted in every definition of a libel. some mean or crooked motive of which an honourable man would be ashamed. So in these lectures. it is a use which has been termed by more than one learned judge. I prefer to keep to the popular and ordinary sense of the word. Using till the word in this sense. almost a fictitious. please note that " malice " is always used to denote some illfeeling towards the plaintiff or the class to " unfortunate " which he belongs.

The law presumes malice from the publication of defamatory words. proved. admit that the last two sentences accurately state our present law and practice in actions of libel. It is not necessary. But if the occasion be one of qualified privilege then the privilege arising from the occasion rebuts the of malice plaintiff prima facie presumption it is and renders to prove what necessary for the no longer presumed in his favour. for the plaintiff to prove alleged." Well.iv PRIVILEGE is 111 the occasion privileged the plaintiff has to prove malice. and must in every case be need be. but not before. however. This is how our older judges and text -book writers would state the same proposition : " Malice is an essential part of the cause of action. because it will be presumed in his favour. : modern way is not yet universally accepted and recognised. this comes to precisely the same thing in the end : it is only a longer and more con- . if it in the first instance. Every lawyer will. and. But at the same time I must admit that they do not state that law and practice quite in the ortho- dox my There is plenty of authority for modern way of putting it but still that fashion. I think.

in nine cases out of ten the plaintiff never need prove The gist of the action is the injury done to the plaintiff's reputation by the defendwords have in ant's words. may : be rebutted by But no these worthies will have it that malice is the gist of the action which is obviously false. — : Now these venerable writers start is by stating is something which not the fact. It word " malice " is used The malice different senses. If the defendant's fact injured the reputation of the plaintiff the action lies affords a : qualified privilege. because 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. having told that falsehood. One is " malice in law a fiction the other is malice in fact. if established. they are met with the fact that no plaintiff ever yet was non -suited in an action .112 THE LAW OF LIBEL iv fusing is way of stating the confusing. prima facie defence to the action but that defence in turn proof of malice. same rule of law. Then. Let us forget the fiction and stick to the fact. Malice case : : no part of the plaintiff's prima facie it is only a reply to a particular defence malice.

193 Ward. 845 22 L. & P. 1853.J. for Shepheard v.B. they invent that the law presumes malice from the mere fact that the defendant has published words defamatory of the plaintiff. another To get over falsehood. and yet the plaintiff recovered damages. inadvertently." An ample apology was inserted 1 in the next issue Blackburn v. They placed the name of the plaintiff's firm under the heading " First Meetings under the Bankruptcy Act " instead of under " Dissolutions of Partnership. C. 395 Ash.P. and also with the further fact that 1 in three reported cases the jury expressly- found that there was no malice on the part of the defendant. . 1859. N. of a newspaper in There the printers made a mistake in setting up type an announcement copied from the London Gazette. except where the occasion was one of qualified . 4 Bing. this. accidentally.B. & F. 146 v. 10 C. I . 13 C. or mistakenly. 836. 1827. the case of Take.E.P. 6 C. 190. v. with an entire absence of malice on the part of the defendant.S. for it The law presumes nothing of the kind knows that half the libels published are all . L.iv PRIVILEGE 113 of libel because he had not privilege proved malice. . instance. Wenman Huntley 3 C. Blackburn. 552. Whitaker. 514 1 F. . . . 502. published carelessly. 1875.

the law is an ass You will find just the same random generality in the law of contract. " but they are under seal and a seal imports a consideration.114 THE LAW OF LIBEL . I cannot imagine." came the by any consideration. It is not the fact that a seal . 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." Why any one should suppose that a bit of sealingwax on the parchment would import a consideration into the transaction. because he has a handsome knocker on his front door. You might as well say that a man must have a handsome balance at his bank. : ! solemnly laid down that " every contract requires a consideration to support it. brought against the proprietor of the paper. Bumble "If the law supposes that. not true." is —which The student discovered promptly numerous covenants which were not supported " Oh yes. for libel And the Court held that the publication was and that the damages awarded were not excessive. First. I can only echo Mr. the plaintiff recovered £50 damages. it was libellous. But it is preposterous to saythat the law presumed malice in such a case as this. mendacious reply.

Justice Vaughan Williams when you told him that the presence of a wafer necessarily imported a good consideration. ei damnum that true et% ? injuria in every action Is What v. could ever no one Suppose a man settled some money on his wife and shortly afterwards became bankrupt. there et was never any necessity to talk about et damnum would have been enough to say simply that there must be an injuria.iv PRIVILEGE If it were. try and set the settlement aside. But both propositions are untrue injury does not import damage. about Ashby is v. the trustee would make a deed of gift. 115 imports a consideration. . 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. the true : Ashby . the old books would reply. I was taught in my youth that there must be of tort. Again. as being voluntary. White only an apparent exception a damage. any more than a seal imports a consideration and it is not necesinjuria." for " every injury imports it ? Does It If it does. White ? rule is Yes. : : sary to prove damage in at least one-third of the actions of tort daily tried in our Courts.

however malicious he may have been. malice worth presuming. Should the judge rule that the occasion was one of qualified privilege.116 THE LAW OF LIBEL It is just iv what I 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. as to malice is ever left to the jury if the plaintiff will recover damages he proves that his reputation has been injured by the defendant. Absolute Privilege There are not many occasions to which an : absolute privilege attaches nor is it desirable . is Unless the judge rules that the occasion no question . his action fails. law never presumes actual malice. whether such injury was malicious or accidental. : if he I. . Should the judge rule absolutely privileged. then and then only does the issue as to malice arise an end of the case in that event. that the occasion was there is and judgment will pass for the defendant. and that the only kind of privileged. the plaintiff will recover if he can prove malice in the defendant cannot.

) (ii. Balfour.B. 2) that " the freedom of speech. They may be grouped under three heads : (i. naval and military affairs. is absolutely privileged.R. 112). A. committee of either House. even if of the House." Hence no member of either House is liable in a court of justice for any words spoken in Parliament (Dillon v. although it may contain false and defamatory statements. The judges.Ir. 1885. Webster. 600. and debates or proceedings in Parliament ought not to be impeached or questioned in any Court or place out of Parliament. Any petition to Parliament or to any 600). Thomas.) Parliamentary proceedings. c.) Parliamentary Proceedings laid 2. etc. 1896. Judicial proceedings.) (iii. st. decline to extend the number (Proctor v. Acts of state. 20 L. as I have said.iv ABSOLUTE PRIVILEGE 117 that there should be many.D. and all evidence given before any such committee. It was down in the Bill of Eights (1 Wm. & Mary. (i. 1887. 16 Q.C. But this privilege did not extend to any publication outside the walls Hence at common law. Fielding and others v. .

Hansard. The libel was clear. that the House of Commons had ordered him to publish the paper which contained the It had been libel but that was no defence." Lord Denman held defence. At this simple statement of clear law the House Commons took grave the action as a contempt of They treated the House of Commons. not familiar. and they an absurd extent. what the House told him to do. Stockdale. with the celebrated Hansard case of Stockdale v. no all privilege attached. it is defence to the action. was the printer and publisher to the House That House ordered him to of Commons. and Stockdale brought his action. accordingly that the order of the House of Commons of afforded Hansard no offence. true. You are no doubt. . can excuse the doing of an illegal act. that " the warrant of no man. more than a century previously. even of the King himself. the hence there was no publication was clear Hansard pleaded."118 THE LAW OF LIBEL iv House ordered a parliamentary paper which contained libellous matter to be the whole published. laid clown in 1693. . carried their vengeance to They could not send Lord . publish a parliamentary paper which contained Hansard did a serious libel on Mr.

but the House of Commons would not listen to reason. and an Act of Parliament was 4 eventually brought in and passed Victorise 9. and eventually the two Sheriffs of London. (ii. affidavits are absolutely privileged. 119 Denman offender main the but Stockdale. or parties. At last. Sugden.) Judicial Proceedings lies No action against judges. except the Attorney -General. c. there is of . for words written or spoken All pleadings and in the course of any proceedings before any Court recognised by law. and all the lawyers in the House. or if they be taken before a body which is not a Court at all. were soon lodged in prison. his attorney. process-server.iv ABSOLUTE PRIVILEGE to the Tower. so long as they are presented to a Court that has power to entertain the proceedings. better counsels prevailed. Pemberton. counsel. If the proceedings be taken before a Court which has no jurisdiction in the matter. Sir William Follett. which protects all parliamentary papers published by the authority of — —the 3 & either House. Sir E. though he was the . assured them they were wrong. wit- nesses. Mr.

a member of the London County He was a gentle- man who was not. He was also. Such places of entertainment are illegal. that when the London County Council is dis- posing of applications for music and dancing an administrative and not a judicial body. Parkinson. Council. But the Court held that he was no judge . not a judge of Japanese costumes he did not know how to distinguish the male from the female attire of that country. in the habit of .120 THE LAW OF LIBEL iv remember that this point was raised in the action which the managers of the Koyal Aquarium brought course no privilege. attending music halls and I think he must have been a little short-sighted. Anyhow. and as such was absolutely privileged. and that his speech on the subject which was being discussed before the County Council was his judgment. he honestly believed that he saw something which nobody else saw. . But though not a judge of this. will You against Mr. he contended that on the London County Council he was a judge. it appears. 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 . I gather. and which did not in fact take place.

It is not competent to a official official civil court to entertain a suit in respect of a communication made by one course of his of State to another in the duty. too. or to inquire whether or not he acted maliciously in making it.B. 431). (iii.iv ABSOLUTE PRIVILEGE 121 of the discipline on the rights of the parties. 1888. police regulation of the metropolis. etc.) Acts of State. Hence that august body is not a Court and speeches made by members at its meetings have only a qualified. A and similar privilege extends to all acts of State. 1892. . . 1 Q. that no judicial powers were transferred to the London County Council. and not an and so Mr. and to the the to all official notification of such acts in . privilege the action and had to pay £250 damages {Royal Aquarium. It is contrary to public policy to have such matters canvassed in the public courts of law. Society v. Parkinson lost absolute. Parkinson. from sub-section 2 of section 78 of the Local Government Act. etc. London Gazette . it is merely a part and management and the It is clear. .. to all State papers its advice given to the Crown by minis- ters or ambassadors.

And duties. We must leave the discussion of Privileged Reports till my next lecture . or mandamus. must be to his interest. but must include moral and social duties of imperfect obligation. or he does . made to a person having a corresponding interest or legal the word 'duty' cannot be confined to which may be enforced by indictment. at pp. And here we have the advantage of having a clear rule or canon laid down for us by Lord Campbell. arise 5 E. in Harrison v.J. in which the party communicating has an terest if or in reference to which he has a duty. it It must be the defendant's duty. 349. you observe. 1855. & B. but we can deal to-night with the ordinary cases of privilege which from Duty and Common Interest.." duty.122 THE LAW OF LIBEL II. C. 348. It is as follows :— " A communication made bona fide upon any subjectin- matter. is privileged. idle gossip or officious interference in other persons' affairs. Qualified Privilege We pass next to cases of qualified privilege. action. Bush. 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. to write as and moreover the person to whom he . Both parties.

this is Waller v. 109). Let us examine more 1. 622).B. of I the ' The commonest instance of a servant. . It must be an interest which the law recognises and approves. in 7 Q. Loch. L. "If a person in who thinking of dealing with another his character any matter of business asks a question about from some one who has means of it is knowledge. In the first place. it is the . mere curiosity is not sufficient. all answers to con- fidential inquiries is are privileged. The duty. On the other hand.D.. So. as be enforced in a court of law a social or moral duty will be sufficient. 1881. (per Brett. the for the interests of society that the question should be answered answer is a privileged and communication . p.J. Lord need not be one which would libel. character As ' have already stated (ante. in detail the working of this rule. the interest need not necessarily be pecuniary. if a lady is asked as to the capabilities and character of a servant formerly in her employ by any one who has a right to ask the question.iv QUALIFIED PRIVILEGE 123 writes must have either some duty to perform in the matter or some.legitimate interest in the subject of the Campbell says. too.

or even to . Smith. in 2.T. he applies to give him a direct and honest answer his the duty of those to whom to question. Robshaw v. 423). as to the solvency of a tradesman. for There must be some good reason . But there are cases in which it becomes a man's duty to go as the — of his own accord to his neighbour. whether it tell in her favour or not. So long communication is made in answer to a previous inquiry by a person interested. Communications volunteered. and not branch out into immaterial matters. 38 L.124 THE LAW OF LIBEL duty to state fully iv lady's and frankly her honest opinion of the former servant. " every one owes his fellow-men to state it as a duty to what he knows about a person J. is If the person inquiring has a legitimate interest in obtaining the information. the question the reply must be given : it must be a relevant answer to the question.. when inquiry is made " (per Grove. the case presents little difficulty. The same rule is applies whenever a confidential inquiry made — it say. Subject to these seriously and honestly limitations. or as to the fessional competency and skill of a pro- man. So here is that necessary concurrence of duty and interest which creates a privilege.

then. Well. is As a till to wait . bailiff. peril. and never would inquire into the matter unless warned.iv QUALIFIED PRIVILEGE 125 a stranger. without waiting for him to come and inquire. no doubt. 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. solicitor and client. foreman. repose trust whenever a between us — whenever confidential exists the duty of my steward. at the risk of appearing officious come to concerns me and tell me to know ? it is and meddlesome. dential relationship exists between husband and wife. partners. to me something which it your duty to do relationship I this. clearly. is it your duty. and could justly blame Such a confiyou if you remained silent. or . principal and agent. and confidence in you. and give him certain information rule. father and son. master and servant. Thus it is clearly or even intimate friends. the safer course you are applied to but life or property may be in imminent and obvious unasked. guardian and ward. brother and sister. In what cases. It may well be that he has no suspicions.

to tion is . they me if know and that anything till is going wrong.126 THE LAW OF LIBEL iv housekeeper to management to inform of whom I have entrusted the my lands. guardian. without waiting for me to come clown to his asking questions. or house. associating a with a particular individual in the or may warn . business. office and inquire. if the defendant is though might not be the in the army. or in a Government inform his office. if A and . But it for another for solicitor. for the defendant is in some degree answerable for the faults of those control. or an intimate friend a may warn young man against . But it immediately under his does not follow that. whom employed. So. it official superiors of would be his duty to any serious mis- conduct on the part of his subordinates . I 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. lady not to marry a particular suitor same circumstances it duty of a mere stranger to give such a warning. So a father. and not to wait suspicions are aroused. volunteer I retain would be dangerous I had never the same informa- till him in the matter. there no confidential relation existing between us.

" But the law does not sanction so extensive an interest in other persons' concerns. the duty of . A to tell except in self-defence for A's superiors expect him to do his own work merely. where no such confidence is reposed. say. standing. has honestly come to the conA housemaid one clusion that the cook is robbing their master. will certainly get himself into trouble. committed under his nose. She has some grounds for suspicion grounds which appear to her sufficient but she has no What ought she to do ? She positive proof. The master may not probably lose her place. Still no is bound to sit silent and see a crime Take this case. and have not or control invested him with any authority over B. — feels that she cannot conscientiously allow her blissful master to remain in ignorance of what But if she speaks. however well-meaning. the cook will is going on. "Humanum nihil a ine alienum puto. . It is where there is no such relationship. A uni- versal busybody. that the difficulties arise which have sadly puzzled our It is all very well for Chremes to judges.iv QUALIFIED PRIVILEGE are officers it is 127 B or clerks of equal rank and tales of B. take the trouble to investigate the matter .

Snead. it is a privileged communication. or ? so ? Is it right. of law applicable to such a case is that laid down by Blackburn.. 1870. L. for instance.128 THE LAW OF LIBEL iv but will just dismiss the cook. time may still be innocent. at p. was considered clear law that no action would . 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. then if he bona fide and without malice does tell them. may what I warn him not to do know. that I am I to I should tell him stand by and see him it lose his money In the days of Elizabeth. This clearly is who all the a question rather of morality than of law." — — But it is often difficult to apply this rule.B. in the interests of society. Take. J. 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. 5 Q. If I learn that one of my tradesmen is about I to supply goods on credit to a man whom reasonably believe to be practically insolvent. in Davies v.E. this case on which our judges have frequently differed in opinion.

rather than those of Coltman and Cresswell. the Court of Common Pleas was equally divided on this question. defendant had been asked by Mr. if the words reflect on " the character of the plaintiff as a tradesman . and hold that such a caution was prima facie privileged. III. JJ. 1765. held that the such a communication should not be volunteered . the same Court was equally divided on a In K . & P. B. 1838 Lord Abinger. Coxhead v. 1846. and Erie. he is liable in this action.J. no action would have been maintainable but as he made the communication without being asked in any way to do so. Cro. 1597. and had said what he did without malice. 1846. J.N.. Deacon.B. And in Bennett v. C. Butler as to the plaintiff. were given as Cleyson. 2 C. 615). 628.. C.. 2 C. defendant must wait till the " If the tradesman applies to him for advice. 8 C. Watts. 8).. at p. How our present Court of Appeal would decide the point I cannot say But I venture to think that it for certain.P. " good v. Eliz. So v. would follow the judgments of Tindal. it was in the days of George {Hewer in But Dawson. Richards. 569.B. (King v.iv QUALIFIED PRIVILEGE if it 129 lie for such a caution counsel" (Vdnspike 541).B.

were there. after thinking it over for a day or two. the chief constable of Newcastle received from the chief constable of Edinburgh a letter stating that a lady's gold watch and chain had been stolen at the Waterloo Hotel. M. and Erie. who did nothing for a few days. Bell. Newcastle he told him privately And Mr. I think the view taken by Tindal.130 THE LAW OF LIBEL very similar question. And quite recently there has been a similar difference of opinion among our judges over the case of Mr. H.J. Stanley. but just before Mr. Stanley's valet 341). Here again.. disStanley left the purport of the letter. who was Mayor of Newcastle. J. While they . They both stayed for some days in Edinburgh at the Waterloo Hotel then they went to Newcastle-on-Tyne. There the plaintiff was the valet of Mr. 2 Q. whether a disinterested third person may inform the owner of a ship that his captain has been guilty of gross mis- conduct at sea. This he at once showed to the Mayor.B. {Stuart v. Stanley. C.. and that suspicion had fallen on the plaintiff. missed the plaintiff. where they were entertained at the Mansion House by the defendant. who in consequence sued . would probably prevail in the present day. 1891.

and it would be the interest of the cook to defend . Justice Wills but the other members of the Court . who held that the occasion was not privileged. took the opposite was privileged. aside. if the housemaid did tell the it would clearly be his duty to hear what the cook had to say in her defence. to perform in the matter.iv QUALIFIED PRIVILEGE 131 the Mayor for damages. and view that the occasion so the verdict was set judgment entered for the de- And fendant. 1890. who has no access to the Law Reports. for trial at the The case came on Leeds Summer Assizes. — There to protect the defendis less difficulty in the cases where the defendant has an interest in the subject-matter of the and the person to whom communication. the communication is made has some duty master. and the plaintiff recovered £250 damages. Alas for the poor housemaid in the case I gave just now. But the deIn the Court of Appeal Lord Justice Lopes agreed with Mr. For instance. before Mr. fendant appealed. 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. Justice Wills.

B. made (Blackham v. is not sufficient that the defendant honestly that believed such person had jurisdiction. are privileged Pugh. go wrong. recently v. L.R. There to his dismay the Clerk at an early . 1894. 54.132 THE LAW OF LIBEL : iv herself hence all she said to her master would if I be privileged. Q. Bishop of Sodor and Man. all communications made in self-defence to protect the defendant's pri- vate interests or to answer some attack by the plaintiff. He proudly attended the first meeting of the new Board. His ambition was gratified he was elected. in Somerset. Any ance one is who honestly believes he has a griev- entitled to seek redress in the proper quarter. 1872. 4 P. 495). In short. . So have reason to complain of the incivility of a guard or a porter. This case is the point decided in the 2 of Hebditch Macllwaine. 611 Laughton v. There the plaintiff aspired to be a Guardian of the Poor for his native village. But he must apply to a person who has It some duty or interest in the matter. stage of the proceedings read out a letter .B. 2 C. I may If my letters write to the railway company. South Petherton. I may complain to the PostmasterGeneral.C.

all communications passing between them with reference to that matter are . was that the Board had no jurisdiction and was not the proper authority to whom to apply and that fact destroyed the claim of . and treating the electors with cider. alleging that the plaintiff had obtained his seat by tampering with voting papers. 4. jury found in favour of the defendants that they honestly and reasonably believed that the Board of Guardians had jurisdiction.iv QUALIFIED PRIVILEGE 133 addressed to the Board by certain residents South Petherton. and had The neither interest nor duty in the matter. —Whenever two or more persons have a legitimate interest in the same matter. Now a Board of Guardians has no jurisin diction in such matters or : it cannot try an of course election petition illegal punish a candidate for practices. But the Court of Appeal The fact held that finding to be immaterial. privilege. The defendants : having the election in their but the conducted Guardians to whom they addressed their complaint belonged to other parishes. and interest in had an own parish properly was consequently the proper authority to whom to apply. Common Interest.

however in- teresting hearers. or masters in the same school. such as two shareholders in the same company. in the parish. professional. as in the case of two officers in the same corps. it may be any interest arising from the joint exercise of any legal right or privilege. their salary being paid out of the rates. defendant had no . anxious to preserve the dignity and reputation of the body to which they both belong.134 THE LAW OF LIBEL iv Such common interest is generally a pecuniary one. In short. So the ratepayers of a parish have a common interest in the selection of fit and proper officers to serve privileged. or two creditors of the But it may also be same debtor. in the management of the trust estate. two trustees of the same settlement. So relations by blood or marriage interest in their family conthis have a cerns. it If. have a common interest. possess. Thus two executors of the same will. common But beyond The " common there interest " is no privimust be one which the law recognises and appreciates. or from the joint performance of any duty imposed or recognised by the law. lege. No privilege attaches to gossip. may in be to both the speaker and fact. though not a pecuniary one.

T. C. interference on his part would be officious and unprivileged. was an and had been selected by a committee to superintend and carry out the restoration of Skirlaugh Church. saying. even a subscriber to the restoration fund. architect. Kelly. of his profession or calling. "I is see that the restoration of Skirlaugh Church has fallen into the hands of an architect. Take.. He was not a parishioner of Skirlaugh and it did not appear that he was . on . The plaintiff there 1879. 588. for instance. the case of Botterill and another v. 41 L. The defendant was a clergyman residing in the county. nor a member of the committee appointed to effect its restoration. who a 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. but he was neither the patron nor the incumbent of the church. Whytehead. he took it Still upon himself to write a letter to a member of the committee.iv QUALIFIED PRIVILEGE 135 other interest in the matter beyond that which any other educated person would naturally feel.B. leyan.

" Again. to interfere between the committee and the plaintiff in respect of the contract between them. 11 C. Both he in or the defendant and the person with whom communicates must have either an interest the subject-matter of the communication . his words will not be privileged. If he does so.E. although uttered in the honest desire to reform the culprit and to warn the rest It is quite possible that the feel of his hearers. Ir. by commenting on his misconduct. instances might be given of occasions to which the law attaches a qualified But the general rule is clear.136 THE LAW OF LIBEL iv a motion for a new trial. Many privilege. not come to church to listen to attacks on their neighbours other (Magrath v. under the circumstances of the case. congregation would more interest in this . and either naming him or alluding to him in unmistakable terms. a clergyman or parish priest has no right in the course of a sermon to " make an example" of a member of his flock. 152). part of the discourse than in any other that will not create any privilege : but they do 1877. Finn.L. declared that he was " at a loss to see what privilege the defendant possessed.

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.

A very large portion of every newspaper consists of reports — reports of trials. reports of a Vestry or a debates in Parliament or in County Council. To-night r propose to discuss the privilege which attaches to certain reports.pinviiiEGrcn reports. dealt with those cases of which both the defendant and the person to whom he writes have either an interest in the subject-matter of the. qualified privilege iu munication. the proprietors of these newspapers would run no risk. or some duly to discharge in connection with it. Ew. occasions exceeds the limits of . and commented only on admitted facts instead of inventing facts for comment. meetings. lecture. And if the speakers at all such gatherings always confined their remarks to matters of public. But suppose that a speaker on one of these. reports of public. I. interest. com- In my last.

and attacks my private life. he may and 1 shot. libellous when printed . could sue the speaker he is most to blame. so that all my friends may I gloat over o them at breakfast -time the next morning ? If they are so reported. sue the speaker.statements about me which are untrue. my right to sue the republication in the newspaper. For. And whether he is liable or not. Perhaps T could perhaps I could not. whether he is worth suing or not. though they are Well. and makes . . and which never as a matter of law have been allowed to the paper. which seriously injures the reputation of the person attacked at such a meeting. it is affect. or the original utterI am not bound to not be " worth powder ance may have been privileged by reason of the occasion. after all. The words may not be actionable when spoken.v I'KIVILErjED fair REPORTS 139 comment. should not have a right of action against the news- paper for the injury thus done to tion ? I my reputa- you may say. . ought these statements to be reported ft in the public press. could sue him and the paper as well. . are questions which should not affect." If he were liable and worth suing. Anyhow.

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. and remain recorded in a permanent form against a perfectly in- No one can tell into whose hands a copy of that newspaper may come. is given to such calumny by its republication columns of a respectable paper. 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 . There is. as I pointed out in my first lecture {ante.e. .140 THE LAW OF LIBEL v The consequences of reporting in the local paper calumnies uttered at some political or The parish meeting may be very serious. and attended. Charges recklessly made in the excitement of the moment are thus diffused throughout the country. to all the world. At common law (i. 4). Moreover. p. additional importance and weight nocent person. Many people will believe it merely because it is in print. apart from any legislation on the subject) an action lies against every one who reports or repeats defamatory in the . in fact.

when reporting deone slight exception famatory words." or " "We are creditably have it on the best Such phrases will not authority that. he has given It is it in- creased weight and credit. if. . it is for the public good to it that the proceedings in Parliament and in the Law Courts should be fully known and .v PRIVILEGED REPORTS 141 words. as well as against the mail the falsehood and first who invented set it in circulation. to an action of libel for the person sued to prove that he did not himself concoct the from another." etc. then. you name your authority " Brown tells me so and so " then you may informed. but it must not be too strictly applied. This is a sensible and useful rule of law. but in mitigation of damages only. There is prevent or diminish your liability. and started a fresh career of mischief. For by repeating the practically endorsed tale the defendant has it. it on no defence." : We — give evidence to show that tell Brown did in fact you so. not as any defence to the action. 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. It is clear that there must be some exceptions made for instance.

it will be a question the jury how far the omission is material. course. the report need not be verbatim it be abridged or condensed. but if any fact be omitted which would have told in the plaintiff's tell favour. all Reports of proceedings judicial and parliamentary were privileged. v accurately even though defamaAccord- tory statements concerning individuals should thereby receive a wider circulation. perhaps.142 THE LAW OF LIBEL reported. which against him for are stated in full. It is not necessary to state all that occurred in extenso . (a) Reports of Judicial Proceedings A may fair ing in a public court of law and accurate report of any proceedis privileged. . but now it is clear that reports may be published of the proceedings day by day. ingly there were at common law (before any ex- statutes were passed on the subject) two ceptions to the rule stated above. provided the whole trial is fairly reported sooner or later. In olden times papers were expected to reserve all report of a case till the trial was ended. while other facts. but it must not be partial or garbled. Of .

case an unprejudiced reader who reads the report knowing nothing about the beforehand. The reporter should always the speeches of counsel. Slight errors may easily occur and if such errors do not substantially alter the impression of the matter which the however. and the jury should find for the plaintiff. 8 Times L. See may Rumney v. the sworn testimony of the witnesses rather than who are often in- structed to open to the jury facts which they subsequently fail to prove.PRIVILEGED REPORTS 143 and whether such deviation from accuracy makes the report unfair. the jury should find for the defendant. He should re- . the entire sup- pression of the evidence of one witness render the report unfair. 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. report Walter. If. in considering the question. absolute The sages . . 1892. there of is is ordinary reader would receive. then the report is unfair and inaccurate. any material prejudicial to and such misstatement the reputation of the plaintiff.R. jury. a substantial misstatement fact. Thus. should not dwell too whole. 256.

which had or. The reporter summary must confine himself to reporting what really occurred in open court. He must not hint mysteriously at evidence which might have been given and was not. it appears that. inquiries whereas he really had made no but had merely copied out statements from an affidavit solicitor's some lent startling him by the clerk. who were not present as much were. His duty is to reproduce precisely what happened at the so as to put those trial. not been put in evidence before the coroner. 663) a reporter was convicted and fined £50 for adding after a report of some proceeding before a coroner a sensational paragraph commencing. He must not state his opinion of the will attach to these remarks.144 THE LAW OF LIBEL fully v cord the summing up of the learned judge. 26 J. Gray. anything of his own. conduct of the parties or discuss their motives for no privilege Such comments may perhaps be justifiable on . " From inquiries made by our at all. v.P.. which is often in itself a fair of the whole case. The reporter vrriust not add any comments. In one case (R. He must not pick up and print private gossip about the case." etc. as possible in the position of those who . reporter. indeed.

But. treated. " Shameful conduct of an attorney.v PRIVILEGED REPORTS 145 another ground. " So where a similar B. the plaintiff. Such reports are not absolutely privileged." the his clients as this particular client had been and the defendant had to apologise and pay costs. one of the parties to the action or his solicitor sent such L . but should be put in the form ( if a short leading article till . not in the ordinary course of his duties as a journal- but out of express malice and spite against If. treats report was How Lawyer judge held that this amounted to a charge that Lawyer B. published a fair Thus. then he will be entitled to re- cover damages. must not be published Again. If the plaintiff can prove that the reporter or the newspaper proprietor (whichever he has made defendant) ist. if so. and they over. all the trial is sensational headings to reports should be avoided. that they are fair and bona jide criticism on a matter of public interest. where the Observer correct account of certain and legal proceedings. published the report. for instance." the attorney recovered dam- ages for the heading. they should not be mixed up with the history of the case. headed. headed. generally treated his clients.

here. it would be open to the jury to find malice. such a prohibition is now rare. although fair deed has prohibited the publication. Sampson. two cases in which and accurate. as it frequently did in former days. The first is where the Court itself reports of judicial proceedings. say ten years ago. the party or his newspaper) would be liable to pay damages. Every Court But has the power of preventing the publication of its proceedings pending is litigation. in which one of the solicitor (not the candidates cut a disgraceful figure. if the jury thought this was done maliciously (Stevens v.146 THE LAW OF LIBEL report to v a the papers. all proceed- . are not privileged. 5 Ex. There are. even a fair and accurate report of such proceedings. or where for any criminal offence to publish other reason the proceedings are unfit for publication. 53). The second obscene or blasphemous It is a where the subject-matter of the trial is an libel. if a newspaper published every day during an election a fair and accurate report of a trial that had taken place. moreover. But except in these two cases. So again. and are inillegal. too. D. But it is very seldom that such cases occur.

Hales. perjury. and suddenly came on a short paragraph in was reading his evening paper as which his name and address appeared. in private. he travelled home to dinner by the Metropolitan Railway.R. the only persons present at the of the application were the magis- trates. (i.side only is represented on the application).^ PRIVILEGED REPORTS 147 ings which are in their nature judicial fully reported. may be even though they are ex parti' even though one . as he learnt afterwards) that an application had been made against him at Canterbury. This was decided in Usill v. behind his back and without his knowledge. cant. ques- tion arose quite recently in Press Association (8 Times L. where the Daily Xeivs reported an ex parte tion applica- made to a police magistrate under the Masters' and Workmen's Act. the plaintiff.e. 3 CRD. But in this case no order was made by the magisAs a matter of trates excluding the public. 671). stating (quite accurately. for a summons charging him with Such applications are usually heard and with closed doors. fact. and the appli- editor . 319. a respectable London The There solicitor. A similar Kimber v. his solicitor and his assistant. making however. their clerk. the and counsel.

the charge costs. full report of this acquittal in the same even- ing papers. Q.B. No attempt was made to exclude his lication. on this subject. 65. that there was no evidence to go to the jury. On these facts it was held by Mr. on 29th June 1892. And this decision was subsequently upheld 1 in the Court of Appeal. Every . Q. but in 1868 the law was clearly . Justice Hawkins. (b) Reports of Parliamentary Proceedings fair and accurate report of any proceeding in either House of Parliament is privileged. and the plaintiff was accordingly non-suited.B. 1893. 152. was dismissed with without the plaintiff being called on for his defence and the defendants published a .148 THE LAW OF LIBEL v of the two local newspapers. 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. this editor or to prevent taking a note of the proceedings for pub- On the hearing of the summons at a later date. 62 L.J.

K. L. and short notes of information their arguments. who was waiting Street. and could thus gain admittance for himself and his assisto ants. 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. They took down the names of the successive speakers. for it in a garret in Exeter and from such slender materials he . the order in which they rose. tion of the proceedings before him. by the 4 decision in 73. the editor of the Gentle" man's Magazine. Q. And reports mentary proceedings were only published in and trembling as " Debates in the Senate of Lilliput.PRIVILEGED REPORTS 149 aud satisfactorily settled v. any report of parlia- of them is a contempt and wholly unprivithe earliest leged.B. We have seen that when a learned judge expressly prohibits the publica. Wason Walter. This they brought to Dr. Cave. Johnson. had interest " with the doorkeepers of each House." with the names of the speakers fear disguised.

to a friend in After 1752 they were avowedly the country. Still they were form of letters . am a little to colour care that the best of it. and all reports of parliamentary proceedings ceased for a while. And I never inside the House but once. Whig dogs should not have the You cannot rely on the absolute cited accuracy of these reports.P.150 THE LAW OF LIBEL v composed the reports which appeared in He himself was the Gentleman' s Magazine. And the Standing Orders gradually became obsolete. reports Cave was But even for such before the House of Lords for breach of privilege in April If 47. not revoked. and But his in 1749 Cave took reports now took the from an M." afraid he allowed his political prejudices what he wrote he " took . 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. printed as reports but still only the initials As late as 1801 of the speakers were given. . And twice in this century Parit liament has rejected measures by which was . heart again.

Wason. Mr. had induced Earl Russell to present to the House of Lords a petition. and the Bill was thrown out. which now stands in the statute book as 6 & 7 Vict. clause. Again. the plaintiff. Lord Campbell introduced 154). Lord Cranworth supported the proposal but Lords Lyndhurst. 96. another Bill into the House of Lords by which he proposed to protect fair reports of certain public meetings. should be maintainable for a faithful report of any proceedings in either House of Parliament opposed this at which strangers had been permitted it to be present. in 1858. Walter. p. Wensleydale. civil or criminal. Duncan (see post. Then in 1867 began the famous case of Wason v. By clause 7 of that Bill he proposed to enact that no legal proceeding.v PRIVILEGED REPORTS 151 proposed to confer privilege on reports of its proceedings. Davison v. charging the . c. and Chelmsford opposed it. Lord Brougham and was struck out. and also all eventually after the decision in faithful reports of parliamentary debates at which strangers had been permitted to be present. In 1843 Lord Campbell introduced into the House of Lords his famous Libel Bill. .

in order to deceive a committee of the House of Com- mons. And . such publicity to the community at large outweighing any injury to a private individual which may result from the publication. in which the charge made against Sir Fitzroy Kelly was entirely refuted. These were of course re- ported in the Times next morning. brought an action against the Times for reporting accurately what the Lords had said about the matter. Lord Chief Baron a with state- years his ment to before. The presenta- tion of this petition on the evening of 12th February 1867 led of course to a stirringdebate. . and praying for inquiry and the removal of that eminent judge from his office if the charge was found to be true. and some very severe observations were made about the plaintiff's conduct. made own knowledge. the very And then man who by his own act had caused the discussion. 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 . into which he had prayed them to inquire.152 THE LAW OF LIBEL appointed thirty false v newly having.

on ministers and of State. it was a strong decision. delivered by Sir Alexander Cockburn. officers men has only in very recent times been recog- Comments on government. on judges and other public functionaries.. in many respects. especially when we remember that Parliament had twice refused to make the change themselves. that its elasticity enables those who administer it to adapt it to the varying conditions of society.J. only gradually developed itself into anything like a satis- factory and settled form. Yet who can doubt that the public are gainers by the change 1 Well. are now made every day. The full liberty of public writers to comment on the conduct and motives of public nised. 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. I myself rejoice But I doubt whether the Court had at it.PRIVILEGED REPORTS in the very valuable 153 and interesting judgment C. : occurs this passage " Whatever disadvantages attach to a system of unwritten law. It is a very strictly the power so to decide. and to the requirements and habits of the age in which we live. and of these we %re fully sensible. it has at least this advantage. . and would have brought down fine and imprisonment on publishers and authors. Everybody welcomed the decision. which half a century ago would have been the subject of actions or ex officio informations. on members of both Houses of Parlia- ment. Our law of libel has.

It was judge-made law. the law of England codified before I J (c) Reports of Public Meetings. if a news- paper published an accurate report of a speech made at a political meeting. & B. Hence. are protected.154 THE LAW OF LIBEL till v strange thing that no one law. 891. or at the meeting of any Vestry or Board of Guardians. Duncan. and not by the judges as indeed has been done in ! — : the analogous case of reports of public meetings. Pickburn. privileged. 7 E. 1862. & N. 7 H. and Popham v. and that so then was aware that such reports were privileged at common many eminent judges had thought the contrary It is true that there was no express decision on the point. then. You may praise the " elasticity " of unwritten law " of our " system but I for one hope to see die. Still it was a bold step to take. Fair and accurate reports of judicial and parliamentary proceedings. 1857. And I venture to think that such a change should be made by the Legislature. etc. the proprietor was liable in damages if that speech . But at common law no This other reports were was decided in two important cases Davison v. 229.

and he had published which was admitted to be accurate. found a verdict for the plaintiff for forty shillings. with- out any notice having been given him. and that it was his duty to report what actually occurred at that meeting The for the information of the ratepayers. jury. The Court of Appeal held .PRIVILEGED REPORTS 155 contained defamatory matter which he could not prove to be literally true. made in the absence of the plaintiff. was that the matter was one of public interest. who was the medical officer of the Union Workhouse at Knutsford. 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. and refusing to attend pauper patients when called for. however. Mr. which carried costs. . of neglecting his duties. Sowler appealed. Soivler. Attention was called to this state of the law by the 1877. No privilege at all attached to any report of the proceedings at such a meetino-. These charges proved to be utterly unfounded and they were a report. case of Pur cell v. Sowler's defence Mr. which was of decided in the Court of Appeal in February The defendant was the proprietor the Manchester Courier.

the Board of Guardians ought not to have discussed the matter at that meeting. editor. of a discussion that had taken place on a matter of public interest at a meeting of a public body. it struck this portion out of the report. And so the verdict was upheld (2 CRD. ought to have exercised discretion.156 THE LAW OF LIBEL v in his favour that the administration of the poor law and the treatment of the paupers. and that though they had permitted still reporters to remain during the discussion. and yet the proprietor of the newspaper must pay damages. held that as the plaintiff But it also was absent. 215). It is in the . or at all events not while reporters were present in the room the . This case created considerable consternation newspaper world. because the editor had not cut out certain passages which in the opinion of the Court should not have been published. when reading over the his report. in each union district. for and was obviously unfair to the plaintiff that such ex parte statements should be published in the local papers. which was admitted to be accurate. was clearly a matter of public interest in that locality. Here was a report. and had had no notice of the charges made against him.

and the report printed is fairly accurate. newspapers always contend. so as to make the report incomplete is the meeting that so long as one that ought to be reported. Proprietors of to be wholly . steadily refused to adopt and the editor of a paper must edit the whole paper or his employers must take the conse. But this is a view which the Legislature and the law courts have. without any adequate it received the Royal discussion in either . as Mr. quences.v PRIVILEGED REPORTS 157 true that the attack made on the plaintiff proved unfounded but then the public ought to be informed that their representatives do make unfounded attacks. introduced a Bill into 1881 Mr. which passed hurriedly through both Houses. assent on 27th August 1881. Sowler did in this very case. In Recourse was had to the Legislature. and so became . nothing more can be required. 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 . Hutchison the House of Commons. relate to matters of public interest. so far. .

c. and published without malice. 60). and if such report was fair and accurate. this And the second section of Act (since repealed) conferred a privilege. if such meeting was lawfully convened for a lawful purpose and open to the public. To bring himself within pro- tection the proprietor or editor of a newspaper . 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. 1881 (44 & 45 Vict.158 THE LAW OF LIBEL v The Newspaper Libel and Registration Act. the section : " Any report published in any newspaper of the proceedings of a public meeting shall be privileged. You created will see at once that the privilege by this section was very cautiously its guarded. on fair and accurate reports of certain public meetings. 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." . and if the publication of the matter complained of was for the public benefit provided always. but a very This is limited privilege.

and published without malice. all privilege . in miles away. in the course of which a speaker made a most serious charge against a Manchester gentleman. ." and that the report was " fair and accurate. have been as beneficial to the public without the libellous words as with them. It was this proviso which rendered this section practically nugatory. not for stituency 200 any division of Manchester. spite of the decision in Purcett Sotvler. was lost. but for a conThe editor. 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. The Manchester Courier was again fore. to the It reported a speech made at a public election-meeting held at Manchester in October 1885.v PRIVILEGED REPORTS 159 had " a public to prove not only that the meeting was meeting " " lawfully convened for a lawful purpose and open to the public. who was then a candidate." but also that the publication of the matter complained of was for the public benefit. v.

and had had no notice of the attack that was going to be made against him.R. 193). that must be omitted from the Similarly. In other words. there. 3 Times L.160 THE LAW OF LIBEL full v allowed a report of this speech to appear the next morning. anything be sedi- blasphemous. This decision gave great dissatisfaction to the Press. the gentleman libelled was not present at the meeting. or obscene uttered report. if anything defamatory be said of a . tious. of course. For instance. Sowler. on 11th December 1886. The Court held. 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 should be published broadcast and read at every Manchester breakfast-table (Pankhurst v. the editor must not rely on the of his reporter he must read through the report and exercise his discretion as before. though. known accuracy public benefit that every word uttered if at every public meeting should be printed and widely disseminated. For it clearly is not for the . as is it was again laid down that it absolutely necessary for an editor to edit a report of a public meeting just as he would a letter from a private correspondent.

Very important amendments and additions were made. and subjects the proprietor of the paper to serious risk. The great battle was over section 4. or of any meeting of any commissioners authorised to act by letters patent. So. school board. the passage must be excised from the report lication. warrant under A M . or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry. 10th February 1888. no doubt. which ultimately became law as follows : Fund (now Lord " fair and accurate report published in any newspaper of the proceedings of a public meeting.PRIVILEGED REPORTS 161 private citizen. whether anyor unfair. brought in a Bill which was thoroughly discussed in both Houses of Parliament. board or local authority formed or constituted under the provisions of any Act of Parliament. before And the editor must decide going to press. for himself. the one relating to the reports of public meetings. such attack is fair This. town council. imposes on the editor an arduous task. the Chairman of the Newspaper Press Glenesk). Act of Parliament. Sowler and his friends again On approached the Legislature. board of guardians. if before puban unfair attack be made on a public man. too. or of any committee appointed by any of the above-mentioned bodies. Sir Algernon Borth- wick. not a public man. So Mr.

shall be privileged. 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. and the publication of which is not for the public benefit.162 THE LAW OF LIBEL v the Eoyal Sign Manual. unless tion it shall was published or made maliciously be proved that such report or publicaProvided : : that nothing in this section shall . For the purposes of this section public meeting shall mean any meeting bona fide and lawfully held for a lawful purpose." : ' ' This is a considerable extension of the privi- lege afforded by the former Act. commissioner of police. that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing. justices of the peace in quarter sessions assembled for administrative or deliberative purposes. officer of state. or other lawful warrant or authority. of any notice or report issued by them for the information of the public. and for the furtherance or discussion of any matter of public concern. It removes the doubts attendant on the phrase " a public . or to protect the publication of any matter not of public concern. select committees of either House of Parliament.authorise the publication of any blasphemous or indecent matter Provided also. or chief constable. and the office or publication at the request of any Government department. whether the admission thereto be general or restricted.

1889 (6 There the plaintiff enTimes L." the publication official it omits embraces of police notices and other announcements. and who attended the meeting for the purpose of annoying him and preventing him from speaking. The first case reported under this section was Kelly v. . and excise every matter that is " not of public concern and the pubbcation of which is not for the public benefit. 0' Medley and others." And he must remember that while there are many matters which concern the public in which they take no interest. deavoured to address a meeting of dock labourers. it 163 meeting and open to the public the words " lawfully convened. But it still. in my opinion. leaves it the duty of the editor to edit all reports of public meetings. These interruptions were accurately reproduced in the Star newspaper. 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. although they had nothing whatever to do with the Sugar Bounties.v PRIVILEGED REPORTS ". 62). but related to matters that had .E. p. they take great interest in many other matters with which they have no concern.

Malice In all the cases which I have dealt with any. that the ordinary religious service held in a Baptist chapel on a Sunday evening is not " a public meeting in- within this section. J. and deed the subject of the sermon rather political which was than religious had been specially announced by advertisements in the local press (Chaloner v. although the chapel doors were necessarily open to the public. in which the jury concurred. the privilege. left to the jury the question whether such matters were of public and their publication for the public with a strong intimation of his own opinion that they were neither.R. Lansdoivn and Sons. It has also been decided by Wills. is to-night. Mr. If the defendant claims privilege for — — report. if qualified. he must show that it any such comes within this section. 10 Times L.. Baron Huddleston concern. 290). at Nisi Prius. 1894.164 THE LAW OF LIBEL v occurred at Bristol ten or twelve years ago. But note that this is the only section which affords any protection to a newspaper that reports the proceedings of a public meeting. benefit. .

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.B. such as the unwarranted violence of the defendant's language or the un- necessary extent given to the is publication. 3 Q. nor careless blundering. It can never be a man's duty to circulate lies. Molyneux.v MALICE it is 165 open to the plaintiff to endeavour to rebut it by showing that the defendant was actuated by malice. 247). So if the . a term in pleading. Malice may be proved by extrinsic 246.. nor want of sound judgment. " Malice does not mean malice in law. evidence. showing that there were former disputes or ill-feeling between the parties. nor honest indignation. if he uses the " occasion for some indirect and wrong motive {Clark v.D. The defendant is not entitled to protection. negligence. Mere stupidity nor is or forgetfulness not malice. The necessity for proving malice arises as soon as the judge rules that the occasion is privileged. a wrong feeling in a man's mind. but actual malice . at pp.. or other libels or slanders published by the de- and fendant of the plaintiff. Or it may be proved by intrinsic evidence. 1877. but not before.

literally true. whether from any ill .166 THE LAW OF LIBEL if v statement was made wantonly. He need not justify and if he does not.feeling against her. gave when he knew that she her a bad deserved a good one. that would prove that he was acting maliciously. Take the commonest case of communication. So if the plaintiff can satisfy the jury that the defendant made reckless statements about her character or her work. do not to mean that at the trial the master bound prove that his words were . indeed. But if the servant can show that her master. the defend- ant did not care whether his words were true or not. it must be such I is master honestly believes to be true. such recklessness is evidence of malice. where master and servant have been living under one roof for some years. where a master give his former servant a character is ' a privileged is asked to If as character.' any the given. and all privilege would be lost. not knowing or caring whether they were true or false. And. such indifference will be evidence of malice to go to the jury. or from a desire to retain her in his character own service. that is no evidence of malice. it is hardly possible for the master not to know of his own know- .

be especially careful. is untrue. . but only by hearsay . and truthful. admissible under such circumstances as part of the plaintiff's case. If under such circumstances the master gave her a bad character. civil. he should not state a rumour as a fact. that the defendant knew they were of malice. disrespectful. and would not merely be proof that the words were untrue it would also be evidence truthful. although no justification is pleaded. declaring that she was slovenly. therefore. it a right to be told the be the defendant's duty to make statements about the plaintiff which do not redound to his credit. in answering a confidential enquiry made by one who has facts. too. Such statements should may be made under a serious sense of responsibility desire to deal fairly with and with an honest the plaintiff as well as with the person who The defendant must asks for the information. if he is merely repeating something that he has heard. proof that she truthful . not to heighten he should its colour or exaggerate its import tell his correspondent that he does not know it of his own knowledge. or is not clean. Above . So. and un- was clean.v M ALICE is 167 ledge whether the servant civil. which is strong evidence Such evidence.

before any inquiries were made. And they must not be made unnecessarily to persons whom they do not concern. there not enough that also the defendant sincerely believed in the truth of what he wrote. nor before more persons. Serious accusations should not be .168 THE LAW OF LIBEL v he must honestly believe in the truth of the charge he makes at the time he makes it. nor in . should ever be made recklessly even in confidence. but no charge all. the jury must he wrote it be under a strong sense compelled duty which him to take the of unusual course of communicating with the person concerned. and not with the purpose of obtaining any indirect advantage for the writer. And this implies that he must have some ground for the assertion it need not be a conclusive or convincing ground. more imperatively necessary where the information volunteered . Letters which impute crime or misconduct to others must always be written with the satisfied that honest desire to promote the ends of justice. made recklessly or wantonly they must always be warranted by some circumstances reasonably arousing suspicion. is And it is this is still and wantonly. .

at p.B. hastily concluded that he had discovered a great public scandal which called for the immediate intervention of the officers of the State. "in Pater v.. 3 C. 868). probable cause. J. necessarily lead to does not of probable cause an inference of malice" (per Maule. So with statements which a defendant deems it necessary to make in order to protect his private interests or interests which he holds in common with others. than necessary. absence of the from infer malice The want but they are not bound to do so. in claiming a right for himself or in resisting a . And this involves that he must have some ground "The jury may for making such a claim. without even — satisfying himself that the account of the matter that had reached him was correct. Next. the defendant must possesses honestly believe that he the right which he claims. Baker. he eagerly seized on some slight and frivolous matter and without any inquiry into the merits. And even where they are addressed to the proper person who has still jurisdiction to deal with the matter.v MALICE 169 stronger language. the jury may hold that the defendant if acted maliciously. In the first place.

the defendant must be careful to use temperate language. or to charge your adversary with dishonesty or fraud. in writing or speaking on a priviclaim. provided the intention of the defendant was . the jury must go further and see that they stances ar'e malicious. the mere fact that he used strong words in so describing it is no evidence of malice to go plaintiff's to the jury. if conduct to be such as he described it. " The particular expressions ought not to be too strictly scrutinised. the defendant honestly believed the Still. If.170 THE LAW OF LIBEL v claim made by another. to leged occasion the defendant breaks out into irrelevant charges against the plaintiff. such excess may be some evidence of malice. the strength of his language ? points to bona fides rather than to malice. therefore. It is not enough that the expressions are angry. and then ask themselves whether the terms used are such as the defendant might have honestly employed under the circumIf so. The test appears to be this the facts : The jury should take as they appeared to the defendant's mind at the time of publication. and to restrict himself to matters relevant to the It is seldom necessary in self-defence impute evil motives to others.

in Woodward v. the facts. an example the case of Spill v. 232). pointed to wind up the firm. 2 Q. The words were strong." was Chamber that the occasion was privileged. B. and been to diminish materially It the available assets of the estate. 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.. There was no other evidence of . 6 C. 170).. Lander. 1895. and yet have no malice in his mind" (per Lord Esher. no doubt yet. 550). " A man may use excessive language.R. and that there was no evidence of malice. M. & P. There the defendant was a creditor of the plaintiff's and apas Take Maule (L. 4 Ex. at p.v MALICE 171 good " (per Alderson. Thereupon the defendant wrote to another creditor of the firm that the conduct of the plaintiff " has bills amount been most disgraceful the result has held in and dishonest .R. when taken in connection with the the Exchequer : they were such as might have been used honestly and bona fide by the defendant. affairs of the plaintiff's He to the learned that the plaintiff had recently taken from the cash -box a parcel of of £1264.B.

then the only question left for them fix is to decide is. The burden .172 THE LAW OF LIBEL . of proving malice lies on the plaintiff and whenever the only evidence relied on for this purpose is as consistent with bona fides as with malice. unless it is satisfied that could honestly have assessed them figure. the judge should stop the case. however. Damages If. ? shall we the damages At what amount The assessment of damages in will peculiarly the province of the jury libel : an action of not grant a new and the Court of Appeal trial on the ground that no reasonable men at the damages are either excessive or insufficient. that Of course. the jury find as a fact that the defendant has maliciously written and published words defamatory of the plaintiff on an occasion of qualified privilege. if the plaintiff has suffered any special damage (i. still entitled to . v malice so the judge acted rightly in directing a verdict for the defendant.e. But suppose there the plaintiff is is no special damage . any special pecuniary loss caused directly by the libel) he should prove this at the fop strictly it trial (if it has been pleaded it cannot be proved unless has been pleaded).

R. "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. Praed damages awarded depends in large measure upon the line of defence adopted by the defendant at the persists right trial. at of p. Cas. his They may consider what been in conduct has in before action. 11 App. at p. the learned judge will. the amount v. he up to the attempt to justify the sense of libel end of the trial in an and fails in that attempt. the jury will probably mark their such conduct by awarding heavy damages against him. Q. and Court during the (per Lord Esher. Graham.B. although the plaintiff cannot prove that he has suffered any pecuniary loss in consequence of the libel. In some cases.. And the amount awarded for such general damages may be substantial. for instance.v DAMAGES 173 recover general damages for the injury done to his reputation. Shepstone. 191). 24 In practice. 55). M. trial " after action. If. if asked. grant an injunction . 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. too.D.

only a farthing or a shilling). he will recover the whole of his costs of the action.B. except the by consent. 1). was of itself evidence that the action ought not to have been brought. Hence jury find a verdict for the plaintiff for any amount of damages. What is good much discussion on cause " There was formerly this point. or the Court.174 THE LAW OF LIBEL v to restrain the defendant from doing further injury to the plaintiff by continuing to circulate the libel.. An if action of libel cannot be brought in the County Court. held that the mere fact that the jury had awarded the plaintiff in an action of libel contemptuous damages (e. and therefore (prima facie at all events) "good cause" for depriving the plaintiff of costs. however small.) thought otherwise. M.g. and A. But the majority of the Court of Appeal (Lord Esher.J. That eminent ? judge. Smith. L.. Costs Lastly comes the all-important question of costs. shall for good cause otherwise order" " (Order LXV. the late Lord Justice Bowen. " unless the judge by whom such action is tried. They decided that the smallness of the . r. L.

If. . of . The Star Newspaper Company. or has otherwise been guilty of oppression or mis- conduct in such cases good cause exists which a judge might well in the exercise of discretion deprive the plaintiff of costs.T. 68 L. but allows his name to be used for the purpose of raising a political contro- versy and injuring political opponents. — for his See O'Connor 146. is the event which the costs are to follow. a plaintiff does not bring the action bona fide to clear his character from an imputation. 233. 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. Limited. 9 Times L. amount however.v COSTS 175 damages recovered could not of itself prevent the costs from following the event because the verdict. v. however small.R. 1893.

tortious or as according to the prevailing sentiment of the Many acts are now criminal in England jurisdiction. aspect of the law of libel from that which has hitherto To write and publish a libel is a crime.VI CRIMINAL I LAW different propose to deal to-night with a engaged our attention. regarded either day. distinction between a tort true. not based on any clear logical principle. different acts as have been criminal. which were formerly matters of purely civil In Roman Law theft was a tort but we consider it a crime. Merely to speak defamatory words of a private individual may be an actionable wrong. At different periods. but is no crime. it is It is and a crime somewhat accidental character. of a its but rather finds explanation in history. Why is this ? The is. The Romans .

while a tort directly affects the individual. the remedy is left hands of the individual aggrieved. when is the wrongful act a crime. 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. and to prevent any repetition of the is the object of civil proceedings N . But am not sure that they are right in I you were being CRIMINAL LAW . I either. as he pleases. fancy that if individual. tell Writers on jurisprudence is us that a crime an injury which directly I affects the State. Well. giving a right to damages. The object stating the distinction is this : — of criminal proceedings is to punish the to offender offence . Other writers lies say that in the the is substantial distinction : rather remedy pursued offender in the . am are not clear about this distinction. libel at all Criminal proceedings for events always "private prosecutions". 177 regarded adultery as a crime it is in English law a civil injury. who may sue for damages or not. the State prosecutes and punishes the when it a tort. you would think that murder at all events was a crime which directly affected the saying that.

178 THE LAW OF LIBEL VI compensate the person injured by giving him The State pursues the former damages. is calculated to to cause a breach of the peace. and with that object it declares criminal every wrongful act the repression of which safety. provided the publication of such words. it is a misdemeanour punishable with fine and imprisonment to write and publish defamatory words of any living person. The attempt publish such words or to exhibit such picture 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. any other reason tend to disturb Hence the civil order and harmony of society. is necessary for the protection of public Now the State all is obviously interested in repressing such libels and lampoons as are calculated to provoke a breach of the peace. Mellin would be provoked to blows if a rival manufacturer disparaged his " Food for infants." It is no is : . independently of any action taken by the individual. object. or effigy also a crime. or the exhibition of such picture or effigy. For it is improbable that Mr. or to exhibit any or which for picture or effigy defamatory of him.

. that it while I it has left is a slander a tort only. some slanders are just mischief done by the bad example that it is as likely to breach of the peace as some libels is so is extensive. do less CRIMINAL LAW 179 crime to utter maliciously. 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. It may turn up years hence and be " Here used against you behind your back. however Does not a slander tend produce a breach of the peace ? to If a man But you will say. defamatory words. even if one admits that cause a libels. right that they should be repressed Once a thing is printed. is That true. so For the and they set pernicious. " me a liar to my face. it is in print." And so many they foolish people will believe anything see in print. And think this right." no doubt. that a libel shall be both a tort and a crime. for the public good. Slanders. you never know into whose hands it may come. I am more likely to knock him down than if he wrote that offensive expression from a safe distance in a calls letter. on the other hand.

while a libel on a private individual is both a tort and a crime. He regards degenerate days.180 THE LAW OF LIBEL are probably uttered in less vi They more a moment of anger and haste. repression of libels that there should be a remedy as well. though I criminal am sorry to think it so. no one it is blame him. permanent and and their evil influence in spite of gossipers is not so widely diffused as a libel in a newspaper. and a civil action therefore has no terrors for them. Hence the civil remedy for is not by public. necessary for the content to sue for damages. many a low newspaper prospect of a civil that the proprietor of rather rejoices at the for libel it action being as a gratuitous advertisement for his paper which will probably increase its circulation in these brought against him. it is the law of England that a slander on a private individual is a tort and not a crime. they are easily forgotten. itself a sufficient protection the . The plaintiff will never get his damages. I believe it is a fact. Anyhow. The person If he will is libelled is both his remedies — or But not bound to pursue indeed either remedy. Libellers are often penniless.

is This special relief to very rarely granted. crime. The number of criminal informations however. officer of State. the decision in the case of the prosecution of Mr. both in the case of R. Labouchere. It follows. tion. Labouchere by the 1884. .D. Duke except of Vallombrosa. been very greatly reduced since has. therefore. can be made the foundation of It has been clearly criminal proceedings. the late Lord Chief Justice of England. laid clown by Lord Coleridge.B. The State intervenes in the interests of public peace and order to protect our reputations from wanton and malicious attacks. that not every libel is a an. I do not know any reason why there should be two criminal libelled As the law stands now. v. the person can in some cases proceed either by way of indictment or by criminal informaremedies. other words. which I have just cited. not libel every publication which would be held a in a civil case. So I some high need trouble you no further with the niceties of criminal procedure and pleading. 12 Q. but only those interest which the State has In in CRIMINAL LAW 181 But though it is right that there should be a criminal remedy for libel. 320.

as an attempt to disturb the public peace. so on the other hand the criminal remedy for libel is in some cases more extensive than the civil. In such a case the public prosecutor has'to "A community in the person of an individual. company. 4 Times L. that such libel tends to excite the hatred of the people against or class. Thus. all belonging to such sect and conduces to a breach of the peace.R. or class of men. wfeput mentioning any person in particular provided it be alleged and proved . and which yet might afford no ground for an action for damages. vi and Wood v. Cox. it is a misde- meanour to libel any sect." While therefore criminal proceedings will not lie in every case in which a civil action can be brought. But private character should be vindicated in an action for libel.182 THE LAW OF LIBEL also in the case of p. Thus where the defendant published in his newspaper a libel on all the nuns in a . You will see at once that there may be many libels the circulation of which would be a danger to the State. 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. and an indictment for libel is only protect the justified when it affects the public.

arrived from Portugal raised that it did not appear precisely who were the persons accused of the murder. 2 Lewin. v. singled out by name who could be a In an earlier case. But here no civil action would have lain. 138. barbarously Crimhandled. the defendant published a sensational account of a cruel murder said to have been committed by certain Jews lately and then living near Broad Street. v. and that no civil action for damages could there- fore have been brought for want of a proper But the Court held that it was plaintiff. wholly immaterial whether a civil action . because was in cast the nuns upon the characters of general. because Certain Jews who its father was a Christian. Osboru. 16-6. C. They were said to have burnt a woman and a new-born baby alive. criminal proceedings were taken and the defendant was convicted Gathercote.C. 237).vi CRIMINAL LAW 183 particular nunnery. 2 Barnard. R. and their lives endangered. the aspersion all (it!. inal proceedings were at once commenced The objection was against the defendant. were in consequence attacked by the mob. 1732. had recently arrived from Portugal. and no one was plaintiff. and who then lived in Broad Street. 1838.

the headman of the Karad caste. in Broad Street. if such libels had not been promptly Again. 4 T. riot. and. who might take the law into his own hands and chastise the offender himself. Premji Ludha. formation for obviously there would soon have been a suppressed.184 THE LAW OF LIBEL lie vi would or not. from the point of view of the as pernicious as a libel on a living man." a term of great among Hindoos. if not a massacre. de- claring that he opprobrium was and reproach " palit. This was decided not long ago in India. made a violent attack on the moral and religious character of the deceased. provided the obvious tendency of such words is to provoke his family to a breach of the peace (R just v. 1791. 126). before a large concourse of present at the funeral of a people. criminal proceedings may be taken if the defendant has been mean enough to publish defamatory words about a man who is dead. Topham. The defendant was Such a libel. State. said. granted a criminal in. But of course no civil action can be brought for a libel on a dead man. Many of those present left at once in conse- quence of what the defendant and the . and there.E. is Hindoo chieftain.

I.R. who had occupied several im- portant public posts in Cardiff. in But in Cardiff 1886 an assault did actually follow on the publication of such a libel. Batchelor died. But in England. and were much lowered in the estimation of the public. as they clearly tended others. Hurbun Nursey and Bombay. but he was not allowed to recover any. It is is enough if the natural the words to vilify the memory of the deceased and to injure his posterity to such an extent as to render a breach of the peace imminent or probable.L. an indictment would have lain. The plaintiff sued as the heir for and nearest relation of the deceased damages. which now stands in one of the public spaces in the town of Cardiff. It is not necessary to prove that a breach of the peace was actually committed still less that the . Thereupon the Western .VI CRIMINAL LAW 185 family of the deceased suffered great pain and annoyance. That is the decision in the case of Luckumsey Roivji v. intended or desired that an assault should ensue that is probably the last thing libeller : that he wished effect of for. In 1883 a Mr. 5 to provoke a breach of the peace. had such words been written. and some of his friends proposed to erect a statue of him. 580.

directed them. a reviler of the aristocracy. p. — is this erected monument. he in indicted him for libel. Topliam (supra) and R. in charging the grand jury. by sympathetic Badicals. who on his return devoted his life and energies to setting class against class a traitor to the Crown.000 who. at the close of a wasted and misspent life. to the eternal disgrace of Cardiff. v. accordance with R. died a pauper . who. . and assaulted him. indictment Walter (post. thought fit to publish a sarcastic epitaph for the proposed statue. Batchelor's son called on the editor. a panderer to the multitude . which had as a rule espoused the opposite cause to that advocated by the deceased in various municipal and political matters. that the . Mr. a hater of the clergy. as first Chairman of the Cardiff School Board. a widely -circulated local paper. a native of Newport. Mr. Owe no man anything. 190). Justice Wills. . This was the paragraph : "Our esteemed correspondent 'Censor' the following : suggested epitaph for the sends us Batchelor statue " ' In honour of John Batchelor.186 THE LAW OF LIBEL vi Mail. Not content with that. who in early life left his country for his country's good .' This did lead to a breach of the peace. v. squandered funds to which he did not contribute who is sincerely mourned by unpaid creditors to the amount of £50.

in But criminal proceedings are brought the interests of the community. and nothing therefore for which he can claim trust I actions for . But it does not matter to the act State whether a plaintiff is entitled to damages If the defendant's is calculated it to lead to a breach of the peace. in order to libels prevent the publication of wise harmful to society. it a libel published only to the person whom defames endangers the peace society. I the differences which exist between libel. 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. The object of civil proceedings. is to compensate the person libelled for the injury done to his reputation by the defendant's CRIMINAL LAW 187 lay. Now. then. 1887. compensation. But Mr. the civil and the criminal law of for instance. must be stopped. Ensor. just as and good order of one addressed to a third person —indeed much as it is . 366). Justice Stephen acquit the directed the v. the matter of publication. or not. 3 Times L. petty jury to defendant (R. explain all which tend to provoke a breach of the peace or are other- This distinction will Take.E.

but only seeking to promote the interests of the public. the greater the libel. Adams. to show that his reputa- he is not claiming any compensation for himself. proceedings." to civil That maxim never applied proceedings for damages if the charge . . . 22 Q. for It is not necessary for him tion has been injured . 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. 66).188 THE LAW OF LIBEL vi probably more dangerous. it is Hence. It was a complete answer to a claim for damages but it was no defence to a prosecution. This is what is meant " by the old maxim. follow the publication. .D. 1888. at common law breach of the peace. v. The greater the truth. 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.B. in criminal sufficient for the prosecutor to prove a publication to himself alone (see R. defendant was not allowed in any case to the prove in a criminal trial that his words were true.

which it is desirable that the whole truth should be made known. But in criminal the words were true was regarded as wholly irrelevant. act. provided he adds that it was for the public benefit that his words should have been published. evidence of that kind was admissible the attempt to give such evidence as an aggravation of the original are many occasions on offence. Thus . until the year 1843. that no evidence whatever of the truth of the words will be Other instances were discovered in which the criminal law pressed on individuals who were really innocent with a severity greater than the interests of the public required. 6 of Lord CampTo any indictment for a libel bell's Act. was not a wrongful. and to this extent the law has been altered by sec. CRIMINAL LAW 189 made by the defendant was true. for Lis its proper and the reduction. though an unkind. proceedings. the defendant is now allowed to plead that his words are true. the fact that No . was regarded Still there on a private individual. the plaintiff . never could recover any damages reputation had only been reduced to level. But it still remains the law in libel all cases of blasphemous or seditious received.

if his editor but he was also criminally to appear in the paper. 3 Esp. of the great house of Walter resided in the country and left the management of the Times entirely to his son. criminally as well as civilly.. for v.190 THE LAW OF LIBEL vi it was the rule in both civil ceedings — and a good is and criminal proand wholesome rule for all that a master liable acts of his servant done in the ordinary course of that pursuance of the This master's orders. permitted a the He was libel not only liable in damages. the acts of his servants" (R.J. liable. holding that he was clearly " answerable. expressed or implied. Walter. although he himself had never seen first Thus. C. 21). The son on the late Earl Cowper to appear in the columns of the Times. Lord Kenyon. rule pressed very hardly on the proprietor of a servant's in employment and newspaper. 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 prove that such his was made without authority. with whose discretion or indiscretion he never interfered. 1799. it. and the allowed a father libel was prosecuted and convicted. .

know anything about Her Majesty's Attorney- But this clause General in Ireland. " It declared that Xo criminal prosecution shall be editor. and did not arise want of due care proof is or caution on his part. without the written fiat or allowance of the Director of Public Prosecutions in England or Her Majesty's Attorney-General in Ireland being first had and obtained. 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 was directed was a libel . libel or commenced against any person re- sponsible for the publication of a newspaper." was found not to work to the I do not satisfaction of the newspaper world. Accordingly in 1881a provision was inserted in the Newspaper Libel and Registration Act for the further protection of the press. from Such to an indictment. for any published therein. publisher. any proprietor. and it was not his practice to hear the proposed defendant on . or knowledge. But this section of Lord Campbell's Act afforded no protection to the reporter or now an answer is though it still to the editor of the paper. or to the printer who actually set up the type. no defence to a claim for CRIMINAL LAW 191 consent.

— . any publisher. editor. when the Bill was before the House of Lords in 1888. or be commenced against any person re- 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 had and obtained. to be none of our modern law reforms answer on There always have to be first attempt. Such applica- made on notice to the person accused. practice 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. I ! because the members of the House of Commons up too late at night. I think perhaps it is bites at the cherry altered. Anyhow. without naming him. who have an opportunity of being heard against such application. the late Lord Chief Justice of England introduced the following clause. This had but the two sit do not know how it is.192 THE LAW OF LIBEL ." This provision works well. vt the matter terms for criminal he used to give leave in general proceedings against the editor or the printer or the publisher of a certain newspaper. which is now section 8 of the Act Law of Libel Amendment : " No criminal prosecution shall proprietor.

L. with intent to shock and insult a believers. or Christianity in general. And he may fearlessly avow any opinions which he conscientiously entertains. 1883. It is a misdemeanour to publish obscene or immoral Moreover. any profane words vilifying or ridiculing God. the Holy Ghost. element in This intent v is an essential the crime. v. themselves to his intellect or his CRIMINAL LAW 193 And. heresy in this 48 L. apart from any apprehension of a breach of the peace. . Jesus Christ. For.T. there are other occasions on which publications the State interferes to suppress harmful. But he may not wound or insult the religious feelings of others by irreverently scoffing at sacred things. 231. pointed out in his Lord Colemost valuable judgment in R. opinions on religious matters which commend . Take. 739 A man may hold any country is no crime. for instance.J. by the 20 & 21 books or pictures. C.C. It is which are obviously misdemeanour to speak. 15 Cox. So with obscene publications. as ridge. the Old or New Testament. blasphemous words.. or to write and publish. or to pervert or mislead the ignorant and unwary. Ramsey and Foote.C.

the utmost latitude all is allowed in the discussion of public " affairs. . the right of every subject of this country. Peake. or either House of Parliament. 83. on the hearing of which the justices may order such books or for. Add. . seize." says in R. or to excite his Majesty's subjects to attempt the alteration of any matter in Church or State otherwise than by lawful means. In a free country like ours. or the Courts of Justice.J. or the government and constitution of the realm. C. obscene and then to serve a books and pictures summons on their owner. . 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. vi Vict. But where there is no intent to create disaffection or to disturb the peace and tran- quillity of the realm. justices in certain cases may issue a warrant authorising their officer to search and bring before them. the productions of . "is . A fair comment on any matter of public interest is of course of free discussion. v. The power Lord Kenyon. Public safety also demands the repression of all seditious words. 86. or his ministers. Reeves. pictures to be destroyed..194 THE LAW OF LIBEL c. no crime. 1796. C.

A. J. J. complain of" Collins. v. " It no new doctrine that if a publica- tion be calculated to alienate the affections of the people.. M.J. Sullivan and others. C. 1868. whether the expedient be or obloquy. Cobbett (1804.. in R. 1839.J. told the jury in R. v. "A jour- may canvass and censure the acts of the Government and their policy and indeed it is duty" (per Fitzgerald." If this to be taken literally. is 49). no Government can is ment a criminal said in 1704. There are old cases which appear to go farther. nalist in R. Tr. 9 & P. v. by bringing the Government into disesteem.C. C. all expressly following this dictum. "If persons should not be called to account for possessing the people with an ill opinion of the Government." discuss "The people have a right to any grievances they may have to (per Littledale. Governments that the people should have a good And Lord Ellenborough. it is a crime. for it is very necessary for. 29 Howell's St.. C. opinion of it." subsist . by ridicule is . 461). all Opposition newspapers CRIMINAL LAW 195 a political author should not be too hardly dealt with. Lord Holt. 11 Cox C. 54).. and to decide that any publication his — tending to beget an ill opinion of the Govern- libel..

In 1704 the present system of party-government was not in vogue.. it was barely conceived by William III. and to alienate from them the affections of the people. It is. by means of arguments It is clearly legitimate August 1819. in direct conflict with more recent dicta (such as those cited in the last paragraph) and with the whole spirit of our Constitution times. or loosens the reins of order and government. moreover. Such a doctrine. Sir Francis and the tendency of modern Burdett could not possibly be convicted in the present day for an electoral address such as that which he issued on 22nd and constitutional to endeavour. and was certainly not generally understood under Queen Anne. that Lord Holt's words must not be taken strictly in their modern signification : we must construe them with reference to the times in which he lived. if strictly enforced. would destroy all liberty of the press. He clearly was not referring to a quiet change of ministry which in no way shakes the throne. And even in . is And the precise object of such arguments to bring the ministers now in office into disesteem. however. addressed to the people.196 THE LAW OF LIBEL vi commit that crime every day. I think. to replace one set of ministers by another.

not so much a particular set of ministers. 422 and to Lord . as the political "To subvert the Government" is the phrase employed in the earlier case of R. system settled by the CRIMINAL LAW 197 Lord Ellenborough's time the ministry were still appointed by the king and not by the people. abusing either of the parties or his witnesses before the cause can be heard on its merits. The judges have power to punish summarily any contempt of Court. mind the Government meant bringing in the Pretender. Latterly the tendency of our Courts has been to discourage all application for committal. 221 Holt. and also all adverse comments ment. Beere. v. published while the proceedings are pending. the general order and discipline of the realm. . . By "the Government" both judges meant. One special branch of the law relating to seditious " words requires a passing notice." with fine or imprisonUnder this term are included all insulting attacks on the judges or the officers of the Court. 12 Mod. 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.

: There the plaintiffs. fiercely Somerset House analysts in reference to another case. the shopkeeper at Bridlington had been acquitted three analysts from Somerset House having certified that the vinegar in question was pure malt vinegar.E. trial I to prevent or will obstruct the fair of the action. As a matter of fact. published in his paper a second article. But any deliberate attempt to prejudice the plaintiff or his mind of the public against the or witnesses. 10 Times certainly be punished. complained of a libellous article which had appeared in the defendant's L. which denounced 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. . It then referred to attacking the the Bridlington case. 1894. 586. which did no real harm to the complainant. who were vinegar manufacturers. and continued : . however. journal in December 1893. Henry. was counsel recently in such a case The Birmingham Vinegar Brewery Company v.198 THE LAW OF LIBEL vi where only a technical contempt of Court has been committed. the defendant the vinegar impure. While the action was still pending.

the Court ordered the defendant to pay the costs of the motion as between solicitor and client. however. the plaintiffs' vinegar was alone not not pure malt amount to contempt of Court (Cronmire v. but gave the manufacturers of the alleged pure malt vinegar an opportunity of issuing lying circulars to grocers everywhere throughout the Kingdom.) regarded the article as clearly a contempt had a committal been pressed for. Limited.VI CRIMINAL LAW 199 "Their ignorance. alleging their vinegar to be pure malt vinegar. 9 Times L. until the trial of the action. to enter ." It will be observed that this article repeated the libel sued on it reasserted that plaintiffs . This may the witnesses whom the plaintiffs would cer- tainly call at the trial. 101). into an. undertaking that. JJ. As my clients did not insist on this. denouncing their ignor- ance and stupidity in unmeasured terms. there should be no more attempts . they would have sent the defendant to prison. But the article complained of went further it attacked . vinegar. not only enabled the vendors to escape punishment. Divisional Court (Wills and of Court The Vaughan Williams. The Daily Bourse. which it most certainly is not." It was clear from the context that the were the persons referred to as " the manufacturers of the alleged pure malt vinegar.R.

in spite of Milton's noble protest. the Areopagitica. and deemed a danger to the State. by articles in and to stop issue all further sale of the particular of which of the are plaintiffs complained. contempts Court rightly and so are all seditious words which But. publish) a book without his Imprimatur. Then a Censor was appointed. directly tend to create riot and disorder. what he Lord has published " The liberty of the press." is the birthplace of " the Liberty no doubt.200 THE LAW OF LIBEL vi to prejudice the course of justice his paper. and no one might print (or. later. will any man may publish what he but he must be prepared to take the if is consequences. the printingpress was regarded with apprehension. is But since 1695 no preliminary license : necessary . This country of the Press. Such punished . subject to these restrictions which are necessary for the protection of public safety. our news- papers are free to publish what they choose." says . a jury shall find that a libel. This censorship continued till first. published on 24th November 1644. At 1695. The king endeavoured to restrict the number of presses and to keep them all in safe hands.

The of libel or no libel was for the jury. 27 Howell's St. n. his " A man may 1799. Asaph. the English press has been the freest in the world. c. 60) put a stop and restored the earlier criminal CRIMINAL LAW v. "consists in printing without any previous license. III. I beg to thank you for the you have listened to my which with attention In the course of them we have lectures. Tr. 1784. 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.R. and then the judge decided whether the words were libellous or not. 431. 201 Mansfield. 3 ^ T. In conclusion Since Fox's Act. v. But Mr. Dean of St. subject to the consequences of law. viz. judge rather than the jury The jury found the fact of publication." " which twelve of blamable publish any things countrymen think is not {per Lord Kenyon in R. Cuthell. by which the practice in civil and criminal that the question cases was identical. referred to actions of libel brought by every . Prior to 1792. 675). — . Fox's Act (32 Geo. indeed. this question was for the deemed one in a criminal case. in R. : the ultimate decision of the question rests with the jury..

. it. 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. is This abuse of our law cannot even bring an action for is the result of It was not always so Our ancestors were familiar with they were the law under which they lived ignorance of our law. it —with one excep- There seems may be abused with it and that is friends. and libel. Conscious as I am of the lack of form and of the defects of expression which mar our law. — . in England. 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. out what it is. It has no the law of the land. one of our institutions which absolute impunity. And with whole world for to them the good reason came for lessons in the law of freedom. you will do your best to remove from his mind that ignorance which causes fond of it . yet this I will say the law of England. is a better law and a more enlightened law than any other system which the world has ever seen. when once you find.202 THE LAW OF LIBEL vi conceivable kind of plaintiff tion. they were proud of .

and to convince him that on this point as on all others the law of CRIMINAL LAW 203 though it does not excuse such misconception. when accurately ascertained. is always sensible and just. — .


) They must also be defamatory have injured the reputation of some person. words must be Written or printed or otherwise permanent.SUMMARY OF THE FOREGOING LECTURES LIBEL be libellous. Words are not defamatory in this sense. 1 Q. .e. Lord Kern/. 1812. which would not be actionable if merely spoken. is a statement. 284). if they merely depreciate some thing." And that person must be the plaintiff (Australian Newspaper Company. 1894. or impugn the plaintiffs title to some (i. " have made people think worse of him. 671). 1894. i. an effigy.B.C. or a statue may be a libel (Monson v. This distinction between libel and slander is now too well established to be ever shaken (Thorley v. A picture. Words will be actionable if written or printed and published. Bennett. whether written or which does not attack a man's moral character. Trade-libel A verbal. they must (ii. Limited. Tussauds. A. Limited v. 355). 4 Taunt.) : To property.

. 1887. at p. whether written or spoken. 1894. 1895. indeed.) Lastly. 524). or in vate or professional reputation.B. ordinary action of libel. In cases of Trade-libel and Slander of Title. 1891. 4 H. A. 154). Evans. Nor can it sue for any words which are a libel or a slander. Mellin. (c) that they have caused him special damage otherwise he can obtain neither damages nor an inBut in an junction (White v. 94). but on its members individually unless. except when the words were published on a privileged occasion.B. North-Eastern News Association. and then he must prove malice. 1892.D. 2 Q.C. Company v. to be actionable the defamatory words must be published by the defendant to some person plaintiff — . he need prove none of these things . & N. 1 Q. when the words are defamatory of some individual. etc. but which has in fact injured his business and caused him pecuniary loss in the way of his trade (Batclife v. special damage has thereby been caused to it (Mayor. Such words clearly do not affect his reputaMege and others. such as murder or corruption (Metropolitan Omnibus. not on it. Hawkins. " Slander of Title " is the term usually employed to include all statements. real or personal. (iii. Limited v. or injure its trade or business (South Hetton Coal Company.B. (b) that the words are false.206 THE LAW OF LIBEL any way affect his pri- or question his solvency. 133). 90). 18 Q. Limited. tion (Hatchard v. 1859. which impeach a man's title to any property. 1 Q.B. 7 71). the must prove (a) malice. Williams. But it cannot bring an action in respect of any words which impute to it conduct of which a corporation physically cannot be guilty . of Manchester v. A corporation or company may sue for any words which affect its property.

Williams. and who neither knew nor ought to have known that that newspaper did contain or was likely to contain any libellous matter. Morgan. no action lies. 190.R. unless it be published. But a publication by the defendant to his own wife is not (Wennhak v. 1885. then. C.J. 1885.B.SUMMARY OF THE FOREGOING LECTURES 207 other than the plaintiff. Jones v.B.B. to publish defamatory words. plaintiff. A' publication to the plaintiff's wife is sufficient (JVenman v. the sale of every written or printed copy of a libel is prima facie an actionable publication. and yet they never reach the eyes of any one except the plaintiff himself.D. Pottle.P. 1888. Ash. 572). and was not to blame 354). If a man desires and intends. 13 C. And no cause of action arises if the words are only communicated to the person defamed for that does not injure his repu: tation. 22 L. 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. unless he can satisfy the jury that he was guilty of no negligence in the matter. he will not be deemed to have published the libel which he thus innocently disseminated (Emmens v. if a man unintentionally or accidentally publishes defamatory words to a third person. 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. 1853. 1 Times L. an action will lie. establishes if A action .D. On the other hand. 16 Q. 20 Q. and does all in his power. 836. Thus. 635). Merely composing a libel is not actionable.

B. provided he does Such comso fairly and with an honest purpose. in no way citizen has full Every the special privilege of the press. a Legitimate criticism is no tort should loss ensue to the plaintiff. A true critic never indulges in personalities. It does not follow a public man into his private life. but confines himself to the merits of the subject-matter before him. 20 Q. or recklessly imputes dishonourable motives.B. at p. 1 Q. This right privilege. however severe in their terms. Carson. 143). True criticism differs from defamation thus (1) Criticism deals only with such things as invite public attention. 275). or call for public comment. " 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. strictly speaking. : : . ments are not libellous. but only his work. 1887. it would be damnum sine injuria(Merivale and Wife v.D. freedom to speak and to write on such matters. therefore is not. (3) The critic never takes advantage of the occasion to gratify private malice. so long as the writer truly states his real opinion of And this right is the matter on which he comments. or pry into his domestic concerns. or to attain any other object beyond the fair discussion of matters of public interest. (2) Criticism never attacks the individual.208 THE LAW OF LIBEL II FAIR COMMENT ON A MATTER OF PUBLIC INTEREST Every one has a right to comment on matters of public interest and general concern.

372. as soon as the case is Birmingham Vinegar Brewery Company 1894. local or municipal . 3 F. in order to relieve the defendant from liability.R.SUMMARY OF THE FOREGOING LECTURES 209 and the judicious guidance of the public taste. the conduct of every public body. So in cases of Fair Comment. 1894. 105. 10 Times L. 4 Q. 1 Q. The management and muni- cipal bodies or local authorities P . Walter. 1862. 1894. Wason v. the limits of a fair comment (d) (a) they must not be published maliciously. Coupland.B. So is the management of every public institution .. 1868. 1840.R. 6 M. 586. of justice.B. 143). the administration of the poor law in any locality . and then honestly and fearlessly state his true opinion of it. at p. and the sanitary condition of any populous district (South Hetton Coal Company. 1 Q. 133). Henry. Limited v. of all public institutions v. & F. (a) the words published must be fairly relevant to some matter of public interest (b) they must be the expression of an opinion. Seymour v. and not the allegation of a fact (c) they must not exceed . L. & W. Limited. duct of every public man is a matter of public concern.B. The administration over. He will carefully examine the production before him. imperial. _ is or is not one of public interest is a question for the Court (per The public conLopes. NorthEastern News Association. L. Whether the matter commented on So are All affairs of state Parmiter v. 73.J. Butterworth.

614. 1 Camp. Soider. 1863. 26th and 27th Nov. L. 1866. at p. All public entertainments. 185. 1886. all advertisements and other appeals to the public Paris v. .J. theatrical performances.B. and quite another to assert that he has been guilty of parof fact ticular acts of misconduct" (Davis v.B. 28 L. Cas. 4 F. Belcher. 1107. and allegations such as that disgraceful acts have been committed or discreditable language used. even with severity. & F. 1 Q. 215. 32 L.210 THE LAW OF LIBEL Purcell v. Mortimer. 1860. But the distinction cannot be too clearly borne in mind between comment or criticism. 1878. 1873. Strauss v. 11 App. Morrison v. 1865. 30 L. Tinting. etc. 9 C.T. the acknowledged or proved acts of a public man.P. Ecclesiastical affairs Kelly v. Hood. but by comment or all members not of the public. 1808. & 769. 9 C.B. L. 1874. Levy.J. 11. F.S. 2 CRD. 342 3 B. 699. Odger v.R. 1877. & Whistler v. It is not enough that the writer honestly believed the facts to be as he stated . C. Spottiswoode. N. Campbell v. 190). n.R. 3 F. It is one thing to comment upon or criticise. 1863. S. Ruskin. Shepstone. 355. concerts. Davis v. All books published . . 396. all pictures publicly exhibited Sir John Carr v. Duncan. Francis. 472. of "There is no doubt that lawfully be criticism. Q.P. (b) Comment on well-known or admitted facts is a very different thing from the assertion of unsubstan- tiated facts for comment. the public acts a public man may made the subject of fair only by the press.

SUMMAKY OF THE FOREGOING LECTURES 211 them (Campbell v. Spottiswoode. If no reader can tell to whom the words refer. (d) The word "fair.B. If so. except possibly in reduction of damages. or an inference from them. there is no libel on the plaintiff. which the student should ^ carefully read. 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. with possible precision and with due regard to the liberty of the press. and that person must be the plaintiff in the action. The limits of a fair comment are laid down. What meaning the Iwriter intended to convey is immaterial. The words will not be construed according to any secret intent of the writer . If no reader can tell what the words mean. 20 Q. of 1887. there is no libel ." refers to the language employed. every word v.D. maliciously." in the phrase "a fair comment. it Ill CONSTRUCTION AND CERTAINTY Words will not be libellous unless they convey to the reader a definite imputation on some definite person. Carson. . Hence it is possible that a fair comment should yet be published would seem that an action lies. and not to the mind of the writer. but in the sense in which they were understood by those to whom they were published. in the judgments of the Court of Appeal (c) all in Merivale and Wife 279-85. pp. supra). for no one's reputation has suffered.



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)




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).



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.

The person



If a defamatory imputation be in fact conveyed to the reader, it does not matter how it was expressed.



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




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


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



defendant to prove that


said so


he must go further



and prove that the


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 reader from that which the actual

truth would have produced

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

Although a plea

to the action, unless





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



that the occasion





this is done, it is

for the plaintiff to prove malice.

Absolute Privilege

Parliamentary Proceedings.


petition to Parlia-

ment, or to a committee of either House, is absolutely privileged, although it contain false and defamatory



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.




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


J. v. L.B... & B. C. Bell. Snead. with see Stuart v. 2. are privileged (Blackham v. 622). it is a privileged communication " (per Blackburn. Answers to Confidential Inquiries are privileged. Bishop of Sodor and Man. Contrast Coxhead Bennett v. 611 j Laughtonv. 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.B. but must include moral and social duties of imperfect obligation " (per Lord Campbell. Communications Volunteered. 3. then if he bona fide and without malice does tell them. 1870.E. 1881. 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. Loch. 5 E. 1855. in Davies v. at pp.B. 349). it is for the interests of society that the question should be answered . . 628. and the answer is a privileged communication" (per Brett. Deacon. Pugh. 2 Q. The commonest instance of this is the " character " of a servant. or where a complaint as to the cc/nduct of some public official is made to his superior officer.J. which may be enforced by indictment. action. at cases in which : — p.B. 2 C. 7 Q. in Harrison v. 1872. or mandamus. J. in Waller v. L. But it is often difficult to apply this rule. to protect the defendant's private interests or to answer some attack made by the plaintiff. 2 C.D. Bush. Communications made in self-defence.g. 348. is " If a person in who thinking of dealing with another any matter of business asks a question about his character from some one who has means of knowledge. ib. Richards.SUMMARY OF THE FOREGOING LECTURES 217 confined to legal duties. 1891. 569. 1. 611). 5 Q.. And 1846. e.B. or even to a stranger. 341. where a confidential relationship already existslbetween the parties .



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.




two or more persons

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


or ratepayers of

same debtor, two directors of the same the same parish {Spill v.

Maule, 1869, L.R. 4 Ex. 232).

Privileged Reports

Reports of Judicial Proceedings.




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




Q.B. 65).


the case


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



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.


At common law no other

Reports of the Proceedings of a Public Meeting. reports were privileged.

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.







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


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


by or on behalf

of such plaintiff or prose-

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



repealed the section set out above, and substituted for

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





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 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."


As soon

as the judge rules that the occasion


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 ill-feeling between the
slanders published

parties, or other libels or



by the defendant of the plaintiff. may be proved by intrinsic evidence, such as the
(Spill v.

unwarranted violence of defendant's language or the
unnecessary extent given to the publication Maule, 1869, L.R. 4 Ex. 232).




It is a misdemeanour at common law, punishable with fine and imprisonment on indictment (and in



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



on a thing


no crime


and wherever no

action would lie without proof of special damage, no indictment or information can be preferred.

Not every

publication which would be held a libel

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



this reason it is

a criminal case to

not necessary in prove a publication to a third


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 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


It is a misdemeanour to speak. or either House of Parliament. or the government and constitution of the realm. c. 1881 (44 & 45 Vict. 83. C. or to write and publish. v. 1888. "no criminal prosecution shall be commenced against any proprietor. 1889 (52 & 53 Vict.. L. any profane words vilifying or ridiculing God. on the hearing of which the justices may order such books or pictures to be destroyed. 18). editor. Blasphemous Words. publisher. or his ministers.C. or the Courts of Justice. the Holy Ghost. be made on notice to the person accused. Jesus Christ. 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. It is a misdemeanour also to publish obscene and immoral books and pictures. This intent is an essential element in the crime {per Lord Coleridge. 60). 739 15 Cox. Ramsey and Foote. otherwise — — — . 1883. 48 L. Seditious Words. or to excite his Majesty's subjects to attempt the alteration of any matter in Church or State. c.C. seize.J. in R. It is a misdemeanour to speak or to write and publish any words which tend to bring into hatred or contempt the sovereign. or Christianity in general. with intent to shock and insult believers. 231). or to pervert or mislead the ignorant and unwary. the Old or New Testament.T. who shall have an opportunity of being heard against such appliAnd see sections 4 and 5 of the Newspaper cation. c. And see the Indecent Advertisements Act. By the 20 & 21 Vict. and bring before them obscene books and pictures and then to serve a summons on their owner. Obscene Words. justices in certain cases may issue a warrant authorising their officer to search for." Libel Act.SUMMARY OF THE FOREGOING LECTURES the 223 Law of Libel Amendment Act.

" says published is a libel. if a jury shall find that what he has " The liberty of the press. 1784. and deemed a danger to the State. and restored the earlier criminal : A .C. publish) a book without his Imprimatur. Then a Censor was appointed. Prior to 1792. 1839." people have a right to discuss any grievances they may have to complain of " (per Littledale. At first the printing-press was Liberty of the Press. C. 431. subject to the consequences of law. 11 Cox C. Beeves.J. Peake.224 THE LAW OF LIBEL But " in a free country like Lord Kenyon. indeed. Tr. III. Dean of St. Cuthell. But Mr. 461). in R. in B. Fox's Act (32 Geo." says " The author should not be too hardly dealt with. The jury found the fact of publication. in spite of Milton's noble protest the Areopagitica.. v." " man may publish anything which twelve of his countrymen think is not blamable " (per Lord Kenyon in B. n.R. 0. "consists in printing without any previous license. this question was deemed one for the judge rather than the jury in a criminal case. Asaph. published on 24th November 1644 was continued till 1695. in R. 9 C. But since that date no preliminary license is necessary a man may publish what he will .. and then the judge decided whether the words were libellous or not. later. v. v. "the productions of a political than by lawful means. 675). and no one might print (or. 1868. in R. 86. & P. "A journalist may Collins. 60) put a stop to this. 1796.. c. ours. The king endeavoured to restrict the num- — — ber of presses and to keep them all in safe hands. 27 Howell's St. 3 T. canvass and censure the acts of the Government and their policy and indeed it is his duty" (per Fitzgerald. This censorship. but he must be prepared to take the consequences. Lord Mansfield. v. Sullivan. J. regarded with apprehension. 1799. J. Add. 54).. v.

practice in civil was viz.SUMMARY OF THE FOREGOING LECTURES law. he may state for their guidance what his own opinion is of the document before him by which the identical. but the ultimate decision of the matter rests with Since Fox's Act the English press has been the jury. . 225 and criminal cases that the question of libel or no The judge should explain to libel was for the jury. the freest in the world. them what a libel is .


Common 133-136 Concert. 43-52 Damages. 172 Dead man. 119 Crime. 77. 166. 184 Defamatory words. 69-80 Contempt of Parliament. 167 Comment on a matter of public interest. 123-131 Construction to be put on words. 56. 149 of Court. 200 Certainty. 21 Acts of State. distinguished from report. 59 interest. 123. 109. 17.INDEX Absolute privilege. 193 Caution to a tradesman. 22 Costs. 129 Censorship of the Press. 86 Apology. 176-186 Criminal information. 58. 119 After-dinner story. libel on. when libel is a. 181 Criticism." 14. 69 . 197-200 Corporation. 29. So "Ananias. order of names on programme. 174 Counsel.. 116-121 Accidental publication. 35-68. 92 Confidential communications. 7 Ambiguous words. 71-73. 121 Affidavit. libel on. 58. defined. 81-93 "Character" of a servant. 113 Action on the case. 94 Blasphemous words. 9. 194-197 .

30 Interest. 15. absolutely privileged." 77 Law of Libel Amendment Act. 189. 122-137 Ironical words. 200 " Pudge. words spoken "Lame-duck. 178 „ on the plaintiff's title. 163. 156. 67. 191. 159. 184 „ on a thing. 176-180 „ on a corporation. 88 in. 160. when ground of privilege. 95-106. 29 Libel defined. 196. 142-148 Jtvry to find libel or no libel. 175 on. 42. 69 distinguished from slander. when a ground of privilege. 222 Malice. 27. 190. 21 . 195 Pair report. attacks 194-197 Heresy. 201 Freedom of speech. 164-172 . 164 Duty. 74. Liberty of the press. 108-116. 181-187 82 Innocent dissemination of a Innuendo. 119. 28 Indecent Advertisements Act." 174. 188. 1 9. 12. 194. service in. 8. 109. 105 Initials.. libel. 92. 142-148 Fox's Libel Act. 22 . 46. 1-8. 151. on a dead man. 36. 42. 196. 64-68. 56. 119 Judicial proceedings. 12. 161. 1.." 86 Judge. 73 "Judas. 86. 122-137 Editor of newspaper.228 THE LAW OF LIBEL Dissenting chapel. 201 Justification. 77. 21. 189 Jest. 36. Government. 1792. 42. 57-59. 223 Indictment. 193 " Honest lawyer. 178 Pair comment." 89 " Good cause. 200. 201 Lord Campbell's Act. 9. 192 Letter placed in wrong envelope." 88 Husband and wife. 192 Effigy.

libels in a. 29. 24 Roman Catholic. 36." 10 are. 176-180 Slander of title. 136 Servant. 86-93 Secondary meaning Seditious words. 138-164 Obscene 193 Parliament. 21. 138-142 Reports of judicial proceedings. 7 . 118. 194-197 138. defined. 122-164 Repetition of defamatory words. 194 „ „ . communications made in. 74. 9 of words. 27 Master and servant. 15. 142-148 of parliamentary proceedings. 107-116 absolute." 106 Married woman. 167 publication by. 36-68. not privileged. generally. 194 contempt of. 1-8. 109. 1881. 105 229 "Man " Man Friday. on. what Meaning of words. 86 Special damage. 33. -70-93. 122-164 „ of concert. 149. debates in. 154-164 Qualified privilege. character of. Public interest. 191 190-192 a. 186. 117.. 187 comments reports of. 113. 35. 53-57 Mistake. 92 of. 190 Matters of public interest. 178 Story told by plaintiff against himself. 190 Slander. libel on. publication by. 131 Sermon. distinguished from libel. 154-164 „ Reputation. 172. 30. 23. 158. 116-121 „ Programme qualified. 77. 21 Slang. 194-197 Self-defence. 180. 3.INDEX of straw. 26 Privileged occasions. 123. 119 reports of proceedings of. 70-75. matters Publication. 140. 30. 148-154 „ of proceedings of public meeting. 179. 54. 31. 148-154 Post-card. 33. papers published by order of. 113 Newspaper „ Libel and Registration Act. reports in libels. 24-34. 31. 166.

. & R. 15. „ spoken in „ 73 ironically. 19. 178 Third person.. of part of the words. 21 Trade Protection Society. 27 Words prima facie meaningless. 88 THE END Printed by R. 71. 91 Truth of the words. 77 „ innocent. 102-104 Volunteering information. Tort distinguished from crime. 91 Wife. 26 Thing. 92 jest. libel in. 124-131 Wall. 1. 74. 21 n.230 THE LAW OF LIBEL Telegram. Edinbutgh. 24. Clark. libel on. 12. 95-106 . 8 Wax „ model. publication to. Limited. libel on. 187 Threats by a patentee. 86. 176-180 Trade-libel. publication to. 90.

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