The Online Library of Liberty

A project of Liberty Fund, Inc.

• To the Honourable Oliver Wendell Holmes, Junr., a Justice of the Supreme Judicial Court of the Commonwealth of Massachusetts.
• Advertisement to the Fourth Edition.
• Addenda.
• Year Books Cited.
• The Law of Torts.
• Book I.—: General Part.
• Chapter I.: The Nature of Tort In General.
• Chapter II.: Principles of Liability.
• Chapter III.: Persons Affected By Torts.
• Chapter IV.: General Exceptions.
• Chapter V.: Of Remedies For Torts.
• Book II.: Specific Wrongs.
• Chapter VI.: Personal Wrongs.
• Chapter VII.: Defamation.
• Chapter VIII.: Wrongs of Fraud and Malice.
• Chapter IX.: Wrongs to Possession and Property.
• Chapter X.: Nuisance.
• Chapter XI.: Negligence ( a ) .
• Chapter XII.: Duties of Insuring Safety.
• Chapter XIII.: Special Relations of Contract and Tort.
• Appendix
• Appendix A. Historical Note On the Classification of the Forms of Personal Action.
• Appendix B. Employers’ Liability Act, 1880.
• Appendix C. Statutes of Limitation.
• Appendix D. Contributory Negligence In Roman Law.
• Draft of a Civil Wrongs Bill, Prepared For the Government of India.

CHAPTER VII.

DEFAMATION.

Civil and criminal jurisdiction distinguished.Reputation and honour are no less precious to good men than bodily safety and freedom. In some cases they may be dearer than life itself. Thus it is needful for the peace and well-being of a civilized commonwealth that the law should protect the reputation as well as the person of the citizen. In our law some kinds of defamation are the subject of criminal proceedings, as endangering public order, or being offensive to public decency or morality. We are not here concerned with libel as a criminal offence, but only with the civil wrong and the right to redress in a civil action: and we may therefore leave aside all questions exclusively proper to the criminal law and procedure, some of which are of great difficulty(a) .

Slander and libel distinguished. The wrong of defamation may be committed either by way of speech, or by way of writing or its equivalent. For this purpose it may be taken that significant gestures (as the finger-language of the deaf and dumb) are in the same case with audible words; and there is no doubt that drawing, printing, engraving, and every other use of permanent visible symbols to convey distinct ideas, are in the same case with writing. The term slander is appropriated to the former kind of utterances, libel to the latter(aa) . Using the terms “written” and “spoken” in an extended sense, to include the analogous cases just mentioned, we may say that slander is a spoken and libel is a written defamation. The law has made a great difference between the two. Libel is an offence as well as a wrong, but slander is a civil wrong only(b) . Written utterances are, in the absence of special ground of justification or excuse, wrongful as against any person whom they tend to bring into hatred, contempt, or ridicule. Spoken words are actionable only when special damage can be proved to have been their proximate consequence, or when they convey imputations of certain kinds.

No branch of the law has been more fertile of litigation than this (whether plaintiffs be more moved by a keen sense of honour, or by the delight of carrying on personal controversies under the protection and with the solemnities of civil justice), nor has any been more perplexed with minute and barren distinctions. This latter remark applies especially to the law of slander; for the law of libel, as a civil cause of action, is indeed overgrown with a great mass of detail, but is in the main sufficiently rational. In a work like the present it is not possible to give more than an outline of the subject. Those who desire full information will find it in Mr. Blake Odgers’ excellent and exhaustive monograph(c) . We shall, as a rule, confine our authorities and illustrations to recent cases.

1.—

Slander.

When slander is actionable. Slander is an actionable wrong when special damage can be shown to have followed from the utterance of the words complained of, and also in the following cases:

Where the words impute a criminal offence.

Where they impute having a contagious disease which would cause the person having it to be excluded from society.

Where they convey a charge of unfitness, dishonesty, or incompetence in an office of profit, profession, or trade, in short, where they manifestly tend to prejudice a man in his calling.

Spoken words which afford a cause of action without proof of special damage are said to be actionable per se: the theory being that their tendency to injure the plaintiff’s reputation is so manifest that the law does not require evidence of their having actually injured it. There is much cause however to deem this and other like reasons given in our modern books mere afterthoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it(d) .

Meaning of “prima facie libellous.” No such distinctions exist in the case of libel: it is enough to make a written statement primâ facie libellous that it is injurious to the character or credit (domestic, public, or professional) of the person concerning whom it is uttered, or in any way tends to cause men to shun his society, or to bring him into hatred, contempt, or ridicule. When we call a statement prima facie libellous, we do not mean that the person making it is necessarily a wrongdoer, but that he will be so held unless the statement is found to be within some recognized ground of justification or excuse.

Such are the rules as to the actionable quality of words, if that be a correct expression. The authorities by which they are illustrated, and on which they ultimately rest, are to a great extent antiquated or trivial(e) ; the rules themselves are well settled in modern practice.

Special damage. Where “special damage” is the ground of action, we have to do with principles already considered in a former chapter(f) : namely, the damage must be in a legal sense the natural and probable result of the words complained of. It has been said that it must also be “the legal and natural consequence of the words spoken” in this sense, that if A. speaks words in disparagement of B. which are not actionable per se, by reason of which speech C. does something to B.’s disadvantage that is itself wrongful as against B. (such as dismissing B. from his service in breach of a subsisting contract), B. has no remedy against A., but only against C.(g) . But this doctrine is contrary to principle: the question is not whether C.’s act was lawful or unlawful, but whether it might have been in fact reasonably expected to result from the original act of A. And, though not directly overruled, it has been disapproved by so much and such weighty authority that we may say it is not law(h) . There is authority for the proposition that where spoken words, defamatory but not actionable in themselves, are followed by special damage, the cause of action is not the original speaking, but the damage itself(i) . This does not seem to affect the general test of liability. Either way the speaker will be liable if the damage is an intended or natural consequence of his words, otherwise not.

Repetition of spoken words. It is settled however that no cause of action is afforded by special damage arising merely from the voluntary repetition of spoken words by some hearer who was not under a legal or moral duty to repeat them. Such a consequence is deemed too remote(j) . But if the first speaker authorized the repetition of what he said, or (it seems) spoke to or in the hearing of some one who in the performance of a legal, official, or moral duty ought to repeat it, he will be liable for the consequences(k) .

Special damage involves a definite temporal loss. Losing the general good opinion of one’s neighbours, consortium vicinorum as the phrase goes, is not of itself special damage. A loss of some material advantage must be shown. Defamatory words not actionable per se were spoken of a member of a religious society who by reason thereof was excluded from membership: there was not any allegation or proof that such membership carried with it as of right any definite temporal advantage. It was held that no loss appeared beyond that of consortium vicinorum, and therefore there was no ground of action(l) . Yet the loss of consortium as between husband and wife is a special damage of which the law will take notice(m) , and so is the loss of the voluntary hospitality of friends, this last on the ground that a dinner in a friend’s house and at his expense is a thing of some temporal value(n) . Actual membership of a club is perhaps a thing of temporal value for this purpose, but the mere chance of being elected is not: so that an action will not lie for speaking disparaging words of a candidate for a club, by means whereof the majority of the club decline to alter the rules in a manner which would be favourable to his election. “The risk of temporal loss is not the same as temporal loss”(o) . Trouble of mind caused by defamatory words is not sufficient special damage, and illness consequent upon such trouble is too remote. “Bodily pain or suffering cannot be said to be the natural result in all persons”(p) .

Imputations of criminal offence. As to the several classes of spoken words that may be actionable without special damage: words sued on as imputing crime must amount to a charge of some offence which, if proved against the party to whom it is imputed, would expose him to imprisonment or other corporal penalty (not merely to a fine in the first instance, with possible imprisonment in default of payment)(q) . The offence need not be specified with legal precision, indeed it need not be specified at all if the words impute felony generally. But if particulars are given they must be legally consistent with the offence imputed. It is not actionable per se to say of a man that he stole the parish bell-ropes when he was churchwarden, for the legal property is vested in him ex officio(r) ; it might be otherwise to say that he fraudulently converted them to his own use. The practical inference seems to be that minute and copious vituperation is safer than terms of general reproach, such as “thief,” inasmuch as a layman who enters on details will probably make some impossible combination.

It is not a libel as against a corporation (though it may be as against individual members or officers) to charge the body as a whole with an offence which a corporate body cannot commit(s) .

Other charges of mere immorality not actionable. False accusation of immorality or disreputable conduct not punishable by a temporal court is at common law not actionable per se, however gross. The Slander of Women Act, 1891 (54 & 55 Vict. c. 51), has abolished the need of showing special damage in the case of “words . . . which impute unchastity or adultery to any woman or girl.” The courts might without violence have presumed that a man’s reputation for courage,Slander of Women Act. honour, and truthfulness, a woman’s for chastity and modest conduct, was something of which the loss would naturally lead to damage in any lawful walk of life. But the rule was otherwise(t) , and remains so as regards all slander of this kind against men, and against women also as regards all charges of improper conduct short of unchastity, which yet may sometimes be quite as vexatious, and more mischievous because more plausible. The law went wrong from the beginning in making the damage and not the insult the cause of action; and this seems the stranger when we have seen that with regard to assault a sounder principle is well established(u) .

A person who has committed a felony and been convicted may not be called a felon after he has undergone the sentence, and been discharged, for he is then no longer a felon in law(v) .

Imputations of contagious disease. Little need be said concerning imputations of contagious disease unfitting a person for society: that is, in the modern law, venereal disease(x) . The only notable point is that “charging another with having had a contagious disorder is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the gist of the action fails; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society”(y) . There does not seem to be more than one reported English case of the kind within the present century(z) .

Evil-speaking of a man in the way of his business. Concerning words spoken of a man to his disparagement in his office, profession, or other business: they are actionable on the following conditions:—They must be spoken of him in relation to or “in the way of” a position which he holds, or a business he carries on, at the time of speaking. Whether they have reference to his office or business is, in case of doubt, a question of fact. And they must either amount to a direct charge of incompetence or unfitness, or impute something so inconsistent with competence or fitness that, if believed, it would tend to the loss of the party’s employment or business. To call a stonemason a “ringleader of the nine hours system” is not on the face of it against his competence or conduct as a workman, or a natural and probable cause why he should not get work; such words therefore, in default of anything showing more distinctly how they were connected with the plaintiff’s occupation, were held not to be actionable(a) . Spoken charges of habitual immoral conduct against a clergyman or a domestic servant are actionable, as naturally tending, if believed, to the party’s deprivation or other ecclesiastical censure in the one case, and dismissal in the other. Of a clerk or messenger, and even of a medical man, it is otherwise, unless the imputation is in some way specifically connected with his occupation. It is actionable to charge a barrister with being a dunce, or being ignorant of the law; but not a justice of the peace, for he need not be learned. It is actionable to charge a solicitor with cheating his clients, but not with cheating other people on occasions unconnected with his business(b) . But this must not be pressed too far, for it would seem to be actionable to charge a solicitor with anything for which he might be struck off the roll, and the power of the court to strike a solicitor off the roll is not confined to cases of professional misconduct(c) .

It makes no difference whether the office or profession carries with it any legal right to temporal profit, or in point of law is wholly or to some extent honorary, as in the case of a barrister or a fellow of the College of Physicians; but where there is no profit in fact, an oral charge of unfitness is not actionable unless, if true, it would be a ground for removal(d) . Nor does it matter what the nature of the employment is, provided it be lawful(e) ; or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfilment of what the party, in virtue of his employment or office, has undertaken. A gamekeeper may have an action against one who says of him, as gamekeeper, that he trapped foxes(f) . As regards the reputation of traders the law has taken a broader view than elsewhere. To impute insolvency to a tradesman, in any form whatever, is actionable. Substantial damages have been given by a jury, and allowed by the court, for a mere clerical error by which an advertisement of a dissolution of partnership was printed among a list of meetings under the Bankruptcy Act(g) . A trading corporation may be defamed in relation to the conduct of its business(h) .

Words indirectly causing damage to a man in his business. There are cases, though not common in our books, in which a man suffers loss in his business as the intended or “natural and probable result” of words spoken in relation to that business, but not against the man’s own character or conduct: as where a wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby impaired: or where a statement is made about the business not in itself defamatory, but tending to a like result, such as that the firm has ceased to exist(i) . In such a case an action lies, but is not properly an action of slander, but rather a special action (on the case in the old system of pleading) “for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.” General loss of business is sufficient “special damage” to be a cause of action in such a case(k) .

2.—

Defamation in general.

Rules as to defamation generally. We now pass to the general law of defamation, which applies to both slander and libel, subject, as to slander, to the conditions and distinctions we have just gone through. Considerations of the same kind may affect the measure of damages for written defamation, though not the right of action itself.

“Implied malice.” It is commonly said that defamation to be actionable must be malicious, and the old form of pleading added “maliciously” to “falsely.” Whatever may have been the origin or the original meaning of this language(l) , malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse(m) ; and to say that the law implies malice from the publication of matter calculated to convey an actionable imputation is only to say in an artificial form that the person who so publishes is responsible for the natural consequences of his act(n) . “Express malice” means something different, of which hereafter.

What is publication. Evil-speaking, of whatever kind, is not actionable if communicated only to the person spoken of. The cause of action is not insult, but proved or presumed injury to reputation. Therefore there must be a communication by the speaker or writer to at least one third person; and this necessary element of the wrongful act is technically called publication. It need not amount to anything like publication in the common usage of the word. That an open message passes through the hands of a telegraph clerk(o) , or a manuscript through those of a compositor in a printing-office(p) , or a letter dictated by a principal is taken down in shorthand and type-written by a clerk(q) , is enough to constitute a publication to those persons if they are capable of understanding the matters so delivered to them. The opening of a letter addressed to a firm by a clerk of that firm authorized to open letters is a publication to him(q) . Every repetition of defamatory words is a new publication, and a distinct cause of action. The sale of a copy of a newspaper, published (in the popular sense) many years ago, to a person sent to the newspaper office by the plaintiff on purpose to buy it, is a fresh publication(r) . It appears on the whole that if the defendant has placed defamatory matter within a person’s reach, whether it is likely or not that he will attend to the meaning of it, this throws on the defendant the burden of proving that the paper was not read, or the words heard by that person; but if it is proved that the matter did not come to his knowledge, there is no publication(s) . A person who is an unconscious instrument in circulating libellous matter, not knowing or having reason to believe that the document he circulates contains any such matter, is free from liability if he proves his ignorance. Such is the case of a newsvendor, as distinguished from the publishers, printers, and owners of newspapers. “A newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury”(t) . If A is justified in making a disparaging communication about B.’s character to C. (as, under certain conditions, we shall see that he may be), it follows, upon the tendency and analogy of the authorities now before us, that this will be no excuse if, exchanging the envelopes of two letters by inadvertence, or the like, he does in fact communicate the matter to D. It has been held otherwise, but the decision was never generally accepted, and is now overruled(u) . In fact, as had been suggested in former editions of this book, it could not stand with the earlier authorities on “publication.”

Sending a defamatory letter to a wife about her husband is a publication: “man and wife are in the eye of the law, for many purposes, one person, and for many purposes”—of which this is one—“different persons”(x) .

Vicarious publication. On the general principles of liability, a man is deemed to publish that which is published by his authority. And the authority need not be to publish a particular form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general “sense and substance” of his request(y) .

A person who is generally responsible for publication (such as an editor), and who has admitted publication, is not as a rule bound to disclose the name of the actual author(z) .

Construction of words: innuendo. Supposing the authorship of the words complained of to be proved or admitted, many questions may remain.

The construction of words alleged to be libellous (we shall now use this term as equivalent to “defamatory,” unless the context requires us to advert to any distinction between libel and slander) is often a matter of doubt. In the first place the Court has to be satisfied that they are capable of the defamatory meaning ascribed to them. Whether they are so is a question of law(a) . If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaintiff that words not libellous in their ordinary meaning or without a special application were used with a specified libellous meaning or application is called an innuendo, from the old form of pleading. The old cases contain much minute, not to say frivolous, technicality; but the substance of the doctrine is now reduced to something like what is expressed above. The requirement of an innuendo, where the words are not on the face of them libellous, is not affected by the abolition of forms of pleading. It is a matter of substance, for a plaintiff who sues on words not in themselves libellous, and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, has failed to show any cause of action(b) . Again, explanation is required if the words have not, for judicial purposes, any received ordinary meaning at all, as being foreign, provincial, or the like(c) . This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary meaning of the words, and a distinct further innuendo to show that they bore a special injurious meaning.

Libellous tendency must be probable in law and proved in fact. The actionable or innocent character of words depends not on the intention with which they were published, but on their actual meaning and tendency when published(d) . A man is bound to know the natural effect of the language he uses. But where the plaintiff seeks to put an actionable meaning on words by which it is not obviously conveyed, he must make out that the words are capable of that meaning (which is matter of law) and that they did convey it (which is matter of fact): so that he has to convince both the Court and the jury, and will lose his cause if he fail with either(e) . Words are not deemed capable of a particular meaning merely because it might by possibility be attached to them: there must be something in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind(f) . In scholastic language, it is not enough that the terms should be “patient” of the injurious construction; they must not only suffer it, but be fairly capable of it. And it is left to the jury, within large limits, to find whether they do convey a serious imputation, or are mere rhetorical or jocular exaggeration(ff) .

Repetition and reports may be libellous. The publication is no less the speaker’s or writer’s own act, and none the less makes him answerable, because he only repeats what he has heard. Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them(g) ; slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth(h) . “A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion,” and “as great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander”(i) . Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all.

From this principle it follows, as regards spoken words, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A.(k) . As to the defendant’s belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man utters defamatory matter at his own peril.

3.—

Exceptions.

Exceptions: fair comment. We now have to mention the conditions which exclude, if present, liability for words apparently injurious to reputation.

Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situation(l) ; and it is not correct to speak of utterances protected by it as being privileged. A man is no more privileged to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action with an excuse, but no cause of action at all. “The question is not whether the article is privileged, but whether it is a libel”(m) . This is settled by the leading case of Campbell v. Spottiswoode(n) , confirmed by the Court of Appeal in Merivale v. Carson(o) . On the other hand, the honesty of the critic’s belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. Whatever goes beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of “fair criticism”(p) . One test very commonly applicable is the distinction between action and motive; public acts and performances may be freely censured as to their merits or probable consequences, but wicked or dishonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. “Where a person has done or published anything which may fairly be said to have invited comment . . . . every one has a right to make a fair and proper comment; and as long as he keeps within that limit, what he writes is not a libel; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment; but it cannot in itself prevent the matter being libellous”(q) .

The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed(r) . On principle it seems that the motive is immaterial; for if the criticism be in itself justifiable, there is nothing to complain of, unless it can be said that comment proceeding from an indirect and dishonest intention to injure the plaintiff is not criticism at all(s) . Evidence tending to show the presence of improper motives might well also tend to show that the comment was not fair in itself, and thus be material on either view; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying there is no evidence of the comment being otherwise than fair(t) .

What is open to comment, matter of law. What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types.

The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs(u) , of those in authority, whether imperial or local(x) , in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like.

Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits.

Whether comment is fair, matter of fact (if libellous construction possible). What is actually fair criticism is a question of fact, provided the words are capable of being understood in a sense beyond the fair (that is, honest) expression of an unfavourable opinion, however strong, on that which the plaintiff has submitted to the public: this is only an application of the wider principle above stated as to the construction of a supposed libel(y) .

In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject-matter. Courts of justice have not the means of applying so fine a test: and a right of criticism limited to experts would be no longer a common right but a privilege.

The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of misconduct(z) , or purporting to describe the actual contents of the work being criticised(a) .

Justification on ground of truth. Defamation is not actionable if the defendant shows that the defamatory matter was true; and if it was so, the purpose or motive with which it was published is irrelevant. For although in the current phrase the statement of matter “true in substance and in fact” is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact being communicated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not deserve. Thus the old rule is explained, that where truth is relied on for justification, it must be specially pleaded; the cause of action was confessed, but the special matter avoided the plaintiff’s right(b) . “The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess”(c) . This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit oneself to a counter-attack in which only complete success will be profitable, and failure will be disastrous.

Must be substantially complete. What the defendant has to prove is truth in substance, that is, he must show that the imputation made or repeated by him was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not(d) . What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact(e) .

There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor of a journal a “felon editor” by showing that he was once convicted of felony. For a felon is one who has actually committed felony, and who has not ceased to be a felon by full endurance of the sentence of the law, or by a pardon; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a “convicted felon” imputed the quality of felony generally, or only conveyed the fact that at some time he was convicted(f) . Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a sufficient justification to aver the committing of the offence without those circumstances, though in law they may be irrelevant, or relevant only as evidence of some element or condition of the offence(g) . The limits of the authority which the Court will exercise over juries in handling questions of “mixed fact and law” must be admitted to be hard to define in this and other branches of the law of defamation.

Defendant’s belief immaterial. Apparently it would make no difference in law that the defendant had made a defamatory statement without any belief in its truth, if it turned out afterwards to have been true when made: as, conversely, it is certain that the most honest and even reasonable belief is of itself no justification. Costs, however, are now in the discretion of the Court.

Immunity of members of Parliament and judges. In order that public duties may be discharged without fear, unqualified protection is given to language used in the exercise of parliamentary and judicial functions. A member of Parliament cannot be lawfully molested outside Parliament by civil action, or otherwise, on account of anything said by him in his place in either House(h) . An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice(i) . It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith.

Other persons in judicial proceedings. Parties, advocates, and witnesses in a court of justice are under the like protection. They are subject to the authority of the Court itself, but whatever they say in the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner’s counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be(k) ; nor for a witness after his cross-examination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the case(l) . The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. A duly constituted military court of inquiry is for this purpose on the same footing as an ordinary court of justice(m) . So is a select committee of the House of Commons(n) . Statements coming within this rule are said to be “absolutely privileged.” The reason for precluding all discussion of their reasonableness or good faith before another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reckless advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions.

Reports of officers, &c. As to reports made in the course of naval or military duty, but not with reference to any pending judicial proceeding, it is doubtful whether they come under this head or that of “qualified privilege.” A majority of the Court of Queen’s Bench has held (against a strong dissent), not exactly that they are “absolutely privileged,” but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive(o) .

Qualified immunity of “privilege l communications.” There is an important class of cases in which a middle course is taken between the common rule of unqualified responsibility for one’s statements, and the exceptional rules which give, as we have just seen, absolute protection to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but not necessary to prevent the person affected from showing, if he can, that an unfavourable opinion expressed concerning him is not honest. Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term “qualified privilege” is often used to mark the requirement of good faith in such cases, in contrast to the cases of “absolute privilege” above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will; and this although the matter reported was “absolutely privileged” as to the original utterance of it.

Conditions of the privilege. The conditions of immunity may be thus summed up:—

The occasion must be privileged; and if the defendant establishes this, he will not be liable unless the plaintiff can prove(p) that the communication was not honestly made for the purpose of discharging a legal, moral or social duty, or with a view to the just protection of some private interest or of the public good by giving information appearing proper to be given, but from some improper motive and without due regard to truth.

Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, “in excess of the occasion,” as we say.

“Express malice.” The rule formerly was, and still sometimes is, expressed in an artificial manner derived from the style of pleading at common law.

The law, it is said, presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the first instance, because the law presumes it; when the presumption is removed, the field is still open to proof. But the “malice in law” which was said to be presumed is not the same as the “express malice” which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm without any lawful occasion, or worse; but it is a different thing in substance. It is better to say that where there is a duty, though of imperfect obligation, or a right, though not answering to any legal duty, to communicate matter of a certain kind, a person acting on that occasion in discharge of the duty or exercise of the right incurs no liability, and the burden of proof is on those who allege that he was not so acting(q) .

What are privileged occasions. The occasions giving rise to privileged communications may be in matters of legal or social duty, as where a confidential report is made to an official superior, or in the common case of giving a character to a servant; or the communications may be in the way of self-defence, or the defence of an interest common to those between whom the words or writing pass; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good; they may also be matter published in the ordinary sense of the word for purposes of general information.

Moral or social duty. As to occasions of private duty; the result of the authorities appears to be that any state of facts making it right in the interests of society for one person to communicate to another what he believes or has heard regarding any person’s conduct or character will constitute a privileged occasion(r) .

Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged. So are communications made by a person to one to whom it is his especial duty to give information by virtue of a standing relation between them, as by a solicitor to his client about the soundness of a security, by a father to his daughter of full age about the character and standing of a suitor, and the like. Statements made without request and apart from any special relation of confidence may or may not be privileged according to the circumstances; but it cannot be prudently assumed that they will be(s) . The nature of the interest for the sake of which the communication is made (as whether it be public or private, whether it is one touching the preservation of life, honour, or morals, or only matters of ordinary business), the apparent importance and urgency of the occasion, and other such points of discretion for which no general rule can be laid down, will all have their weight; how far any of them will outweigh the general presumption against officious interference must always be more or less doubtful(t) .

Self-protection. Examples of privileged communications in self-protection, or the protection of a common interest, are a warning given by a master to his servants not to associate with a former fellow-servant whom he has discharged on the ground of dishonesty(u) ; a letter from a creditor of a firm in liquidation to another of the creditors, conveying information and warning as to the conduct of a member of the debtor firm in its affairs(x) . The privilege of an occasion of legitimate self-interest extends to a solicitor writing as an interested party’s solicitor in the ordinary course of his duty(y) . The holder of a public office, when an attack is publicly made on his official conduct, may defend himself with the like publicity(z) .

Information for public good. Communications addressed in good faith to persons in a public position for the purpose of giving them information to be used for the redress of grievances, the punishment of crime, or the security of public morals, are in like manner privileged, provided the subject-matter is within the competence of the person addressed(a) . The communication to an incumbent of reports affecting the character of his curate is privileged, at all events if made by a neighbour or parishioner; so are consultations between the clergy of the immediate neighbourhood arising out of the same matter(b) .

Fair reports. Fair reports (as distinguished from comment) are a distinct class of publications enjoying the protection of “qualified privilege” to the extent to be mentioned. The fact that imputations have been made on a privileged occasion will, of course, not exempt from liability a person who repeats them on an occasion not privileged. Even if the original statement be made with circumstances of publicity, and be of the kind known as “absolutely privileged,” it cannot be stated as a general rule that republication is justifiable. Certain specific immunities have been ordained by modern decisions and statutes. They rest on particular grounds, and are not to be extended(c) . Matter not coming under any of them must stand on its own merits, if it can, as a fair comment on a subject of public interest.

Parliamentary papers. By statute (3 & 4 Vict. c. 9, ad 1840) the publication of any reports, papers, votes, or proceedings of either House of Parliament by the order or under the authority of that House is absolutely protected, and so is the republication in full. Extracts and abstracts are protected if in the opinion of the jury they were published bona fide and without malice(d) .

Parliamentary debates and judicial proceedings. Fair reports of parliamentary and public judicial proceedings are treated as privileged communications. It has long been settled(e) that fair and substantially accurate reports of proceedings in courts of justice are on this footing. As late as 1868 it was decided(f) that the same measure of immunity extends to reports of parliamentary debates, notwithstanding that proceedings in Parliament are technically not public, and, still later, that it extends to fair reports of the quasi-judicial proceedings of a body established for public purposes, and invested with quasi-judicial authority for effecting those purposes(g) . In the case of judicial proceedings it is immaterial whether they are preliminary or final (provided that they are such as will lead to some final decision)(h) and whether contested or ex parte(h) , and also whether the Court actually has jurisdiction or not, provided that it is acting in an apparently regular manner(i) . The report need not be a report of the whole proceedings, provided it gives a fair and substantially complete account of the case: but whether it does give such an account has been thought to be a pure question of fact, even if the part which is separately reported be a judgment purporting to state the facts(k) . The report must not in any case be partial to the extent of misrepresenting the judgment(l) . It may be libellous to publish even a correct extract from a register of judgments in such a way as to suggest that a judgment is outstanding when it is in fact satisfied(m) ; but a correct copy of a document open to the public is not libellous without some such further defamatory addition(n) . By statute “a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority” is, “if published contemporaneously with such proceedings,” privileged: which seems to mean absolutely privileged, as otherwise the statute would not add to the protection already given by the common law(o) . The rule does not extend to justify the reproduction of matter in itself obscene, or otherwise unfit for general publication(p) , or of proceedings of which the publication is forbidden by the Court in which they took place. The burden of proof is on the defendant to show that the report is fair and accurate. But if it really is so, the plaintiff’s own evidence will often prove that the facts happened as reported(q) .

Volunteered reports. An ordinary newspaper report furnished by a regular reporter is all but conclusively presumed, if in fact fair and substantially correct, to have been published in good faith; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal imputations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action(r) .

Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commissions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888(s) . A public meeting is for this purpose “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.” The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover “the publication of any matter not of public concern, and the publication of which is not for the public benefit,” is not protected(t) .

Excess of privilege. In the case of privileged communications of a confidential kind, the failure to use ordinary means of ensuring privacy—as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necessity—will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one(u) . But the privilege of a person making a statement as matter of public duty at a meeting of a public body is not affected by unprivileged persons being present who are not there at his individual request or desire, or in any way under his individual control, though they may not have any strict right to be there, newspaper reporters for example(x) . It is now decided that if a communication intended to be made on a privileged occasion is by the sender’s ignorance (as by making it to persons whom he thinks to have some duty or interest in the matter, but who have none), or mere negligence (as by putting letters in wrong envelopes) delivered to a person who is a stranger to that occasion, the sender has not any benefit of privilege(y) .

Honest belief is not necessarily reasonable belief. Where the existence of a privileged occasion is established, we have seen that the plaintiff must give affirmative proof of malice, that is, dishonest or reckless ill-will(z) , in order to succeed. It is not for the defendant to prove that his belief was founded on reasonable grounds, and there is no difference in this respect between different kinds of privileged communication(a) . To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protection of the rule(b) . It has been found difficult to impress this distinction upon juries, and the involved language of the authorities about “implied” and “express” malice has, no doubt, added to the difficulty. The result is that the power of the Court to withhold a case from the jury on the ground of a total want of evidence has on this point been carried very far(c) . In theory, however, the relation of the Court to the jury is the same as in other questions of “mixed fact and law.” Similar difficulties have been felt in the law of Negligence, as we shall see under that head.

Power of jury in assessing damages. In assessing damages the jury “are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in Court during the trial.” And the verdict will not be set aside on the ground of the damages being excessive, unless the Court thinks the amount such as no twelve men could reasonably have given(d) .

Special procedure in actions for newspaper libels. Lord Campbell’s Act (6 & 7 Vict. c. 96, ss. 1, 2), contains special provisions as to proving the offer of an apology in mitigation of damages in actions for defamation, and payment into court together with apology in actions for libel in a public print(e) .

Limits of interrogatories in action for libel. Where money has been paid into court in an action for libel, the plaintiff is not entitled to interrogate the defendant as to the sources of his information or the means used to verify it(f) .

Bad reputation of plaintiff. A plaintiff’s general bad repute cannot be pleaded as part of the defence to an action for defamation, for it is not directly material to the issue, but can be proved only in mitigation of damages(g) .

Injunctions. We have already seen(h) that an injunction may be granted to restrain the publication of defamatory matter, but, on an interlocutory application, only in a clear case(h) , and not where the libel complained of is on the face of it too gross and absurd to do the plaintiff any material harm(i) . Cases of this last kind may be more fitly dealt with by criminal proceedings.

[(a) ]Such as the definition of blasphemous libel, and the grounds on which it is punishable.

[(aa) ]Quære, whether defamatory matter recorded on a phonograph would be a libel or only a potential slander.

[(b) ]Scandalum magnatum was, and in strictness of law still might be, an exception to this: Blake Odgers, Digest of the Law of Libel and Slander, 134—137. Mr. Odgers has not found any case after 1710. There is a curious 14th cent. case of scandalum magnatum in 30 Ass. 177, pl. 19, where the defendant only made matters worse by alleging that the plaintiff was excommunicated by the Pope.

[(c) ]A Digest of the Law of Libel and Slander, &c. By W. Blake Odgers, London, 2nd ed. 1887.

[(d) ]See Blake Odgers, pp. 2—4, and 6 Amer. Law Rev. 593. It seems odd that the law should presume damage to a man from printed matter in a newspaper which, it may be, none of his acquaintances are likely to read, and refuse to presume it from the direct oral communication of the same matter to the persons most likely to act upon it. Mr. Joseph R. Fisher, in Law Quart. Rev. x. 158, traces the distinction to “the adaptation by the Star Chamber of the later Roman law of libellus famosus.”

[(e) ]The old abridgments, e.g. Rolle, sub tit. Action sur Case, Pur Parolls, abound in examples, many of them sufficiently grotesque. A select group of cases is reported by Coke, 4 Rep. 12 b—20 b.

[(f) ]P. 28, above.

[(g) ]Vicars v. Wilcocks (1806) 8 East 1, 9 R. R. 361.

[(h) ]Lynch v. Knight (1861) 9 H. L. C. 577. See notes to Vicars v. Wilcocks, in 2 Sm. L. C.

[(i) ]Maule J. ex relat. Bramwell L. J., 7 Q. B. D. 437.

[(j) ]Parkins v. Scott (1862) 1 H. & C. 153, 31 L. J. Ex. 331 (wife repeated to her husband gross language used to herself, wherefore the husband was so much hurt that he left her).

[(k) ]Blake Odgers 331. Riding v. Smith (1876) 1 Ex. D. 91, 45 L. J. Ex. 281, must be taken not to interfere with this distinction, see per C. A. in Ratcliffe v. Evans, ’92, 2 Q. B. 524, 534, 61 L. J. Q. B. 535.

[(l) ]Roberts v. Roberts (1864) 5 B. & S. 384, 33 L. J. Q. B. 249.

[(m) ]Lynch v. Knight, 9 H. L. C. 577.

[(n) ]Davies v. Solomon (1871) L. R. 7 Q. B. 112, 41 L. J. Q. B. 10.

[(o) ]Chamberlain v. Boyd (1883) 11 Q. B. Div. 407; per Bowen L. J. at p. 416, 52 L. J. Q. B. 277. The damage was also held too remote.

[(p) ]Allsop v. Allsop (1860) 5 H. & N. 534, 29 L. J. Ex. 315.

[(q) ]This is the true distinction: it matters not whether the offence be indictable or punishable by a court of summary jurisdiction: Webb v. Beavan (1883) 11 Q. B. D. 609, 52 L. J. Q. B. 544. In the United States the received opinion is that such words are actionable only “in case the charge, if true, will subject the party charged to an indictment for a crime involving moral turpitude, or subject him to an infamous punishment:” Brooker v. Coffin (1809) 5 Johns. 188, Bigelow L. C. 77, 80; later authorities ap. Cooley on Torts, 197.

[(r) ]Jackson v. Adams (1835) 2 Bing. N. C. 402. The words were “who stole the parish bell-ropes, you scamping rascal?” If spoken while the plaintiff held the office, they would probably have been actionable, as tending to his prejudice therein.

[(s) ]Mayor of Manchester v. Williams, ’91, 1 Q. B. 94, 60 L. J. Q. B. 23. As to defamation in the way of business, see p. 227, below.

[(t) ]The technical reason was that charges of incontinence, heresy, &c., were “spiritual defamation,” and the matter determinable in the Ecclesiastical Court acting pro salute animae. See Davis v. Gardiner, 4 Co. Rep. 16 b; Palmer v. Thorpe, ib. 20 a.

[(u) ]P. 197, above.

[(v) ]Leyman v. Latimer (1878) 3 Ex. Div. 352, 47 L. J. Ex. 470. There are some curious analogies to these refinements in the Italian sixteenth-century books on the point of honour, such as Alciato’s.

[(x) ]Leprosy and, it is said, the plague, were in the same category. Small-pox is not. See Blake Odgers 64.

[(y) ]Carslake v. Mapledoram (1788) 2 T. R. 473, Bigelow L. C. 84, per Ashhurst J.

[(z) ]Bloodworth v. Gray (1844) 7 M. & Gr. 334. The whole of the judgment runs thus: “This case falls within the principle of the old authorities.”

[(a) ]Miller v. David (1874) L. R. 9 C. P. 118, 43 L. J. C. P. 84.

[(b) ]Doyley v. Roberts (1837) 3 Bing. N. C. 835, and authorities there cited.

[(c) ]Re Weare, ’93, 2 Q. B. 439.

[(d) ]Alexander v. Jenkins, ’92, 1 Q. B. 797, 61 L. J. Q. B. 634, C. A.

[(e) ]L. R. 2 Ex. at p. 330.

[(f) ]Foulger v. Newcomb (1867) L. R. 2 Ex. 327, 36 L. J. Ex. 169.

[(g) ]Blake Odgers 80; Shepheard v. Whitaker (1875) L. R. 10 C. P. 502.

[(h) ]South Hetton Coal Co. v. N. E. News Association, ’94, 1 Q. B. 133, 9 R. Apr. 170 (this was a printed libel, but the principle seems equally applicable to spoken words).

[(i) ]Per C. A., Ratcliffe v. Evans, ’92, 2 Q. B. 524, 527, 61 L. J. Q. B. 535.

[(k) ]Ratcliffe v. Evans, last note; cp. Hartley v. Herring (1799) 8 T. R. 130, 4 R. R. 614; Riding v. Smith (1876) 1 Ex. D. 91, 45 L. J. Ex. 281, must be justified, if at all, as a case of this class: ’92, 2 Q. B. at p. 534.

[(l) ]See Bigelow L. C. 117.

[(m) ]Bayley J. in Bromage v. Prosser (1825) 4 B. & C. at p. 253, Bigelow L. C. 137: “Malice in common acceptation means ill-will against a person, but in its legal sense it means a wrongful act done intentionally without just cause or excuse:” so too Littledale J. in McPherson v. Daniels (1829) 10 B. & C. 272.

[(n) ]Lord Blackburn in Capital and Counties Bank v. Henty (1882) 7 App. Ca. 787, 52 L. J. Q. B. 232.

[(o) ]See Williamson v. Freer (1874) L. R. 9 C. P. 393, 43 L. J. C. P. 161.

[(p) ]Printing is for this reason prima facie a publication, Baldwin v. Elphinston, 2 W. Bl. 1037. There are obvious exceptions, as if the text to be printed is Arabic or Chinese, or the message in cipher.

[(q) ]Pullman v. Hill & Co., ’91, 1 Q. B. 524, 60 L. J. Q. B. 299, C. A. But if the occasion of the letter is privileged as regards the principal, the publication to the clerk in the usual course of office business is privileged too. Boxsius v. Goblet Frères, ’94, 1 Q. B. 842, 9 R. Mar. 211, C. A.

[(r) ]Duke of Brunswick v. Harmer (1849) 14 Q. B. 185, 19 L. J. Q. B. 20.

[(s) ]Blake Odgers 154.

[(t) ]Emmens v. Pottle (1885) 16 Q. B. Div. 354, per Bowen L. J. at p. 358, 55 L. J. Q. B. 51. But it seems the vendor would be liable if he had reason to know that the publication contained, or was likely to contain, libellous matter.

[(u) ]Tompson v. Dashwood (1883) 11 Q. B. D. 43, 52 L. J. Q. B. 425, was overruled by Hebditch v. MacIlwaine, ’94, 2 Q. B. 54, 9 R. July, 204, C. A. See pp. 252-3, below.

[(x) ]Wenman v. Ash (1853) 13 C. B. 836, 22 L. J. C. P. 190, per Maule J. But communication by the defendant to his wife is not a publication: Wennhak v. Morgan (1888) 20 Q. B. D. 635, 57 L. J. Q. B. 241.

[(y) ]Parkes v. Prescott (1869) L. R. 4 Ex. 169, 38 L. J. Ex. 105, Ex. Ch. Whether the particular publication is within the authority is a question of fact. All the Court decide is that verbal dictation or approval by the principal need not be shown.

[(z) ]Gibson v. Evans (1889) 23 Q. B. D. 384, 58 L. J. Q. B. 612.

[(a) ]Capital and Counties Bank v. Henty (1882) 7 App. Ca. 741, 52 L. J. Q. B. 232, where the law is elaborately discussed. For a shorter example of words held, upon consideration, not to be capable of such a meaning, see Mulligan v. Cole (1875) L. R. 10 Q. B. 549, 44 L. J. Q. B. 153; for one on the other side of the line, Hart v. Wall (1877) 2 C. P. D. 146, 46 L. J. C. P. 227.

[(b) ]See 7 App. Ca. 748 (Lord Selborne).

[(c) ]Blake Odgers 109—112.

[(d) ]7 App. Ca. 768, 782, 790, cf. p. 787.

[(e) ]Lord Blackburn, 7 App. Ca. 776.

[(f) ]Lord Selborne, 7 App. Ca. 744; Lord Blackburn, ib. 778; Lord Bramwell, ib. 792, “I think that the defamer is he who, of many inferences, chooses a defamatory one.”

[(ff) ]Australian Newspaper Co. v. Bennett, 6 R. Sept. 36, P. C.

[(g) ]Purcell v. Sowler (1877) 2 C. P. Div. 215, 46 L. J. C. P. 308.

[(h) ]Watkin v. Hall (1868) L. R. 3 Q. B. 396, 37 L. J. Q. B. 125.

[(i) ]Littledale J., McPherson v. Daniels (1829) 10 B. & C. 263, 273, adopted by Blackburn J., L. R. 3 Q. B. 400. The latter part of the 4th Resolution reported in the Earl of Northampton’s case, 12 Co. Rep. 134, is not law. See per Parke J., 10 B. & C. at p. 275.

[(k) ]See Parkins v. Scott (1862) 1 H. & C. 153, 31 L. J. Ex. 331, p. 223, above.

[(l) ]See per Bowen L. J., Merivale v. Carson (1887) 20 Q. B. Div. at p. 282.

[(m) ]Lord Esher M. R., 20 Q. B. Div. at p. 280.

[(n) ]3 B. & S. 769, 32 L. J. Q. B. 185 (1863).

[(o) ](1887) 20 Q. B. Div. 275, 58 L. T. 331. This must be taken to overrule whatever was said to the contrary in Henwood v. Harrison (1872) L. R. 7 C. P. 606, 626, 41 L. J. C. P. 206.

[(p) ]Bowen L. J., 20 Q. B. Div. at p. 283.

[(q) ]Blackburn J., Campbell v. Spottiswoode, 32 L. J. Q. B. at p. 202; cp. Bowen L. J., 20 Q. B. Div. at p. 284.

[(r) ]See however Wason v. Walter (1868) L. R. 4 Q. B. at p. 96, 38 L. J. Q. B. 34, and Stevens v. Sampson (1879) 5 Ex. Div. 53, 49 L. J. Q. B. 120; and per Lord Esher M. R., 20 Q. B. Div. at p. 281.

[(s) ]Lord Esher M. R., Merivale v. Carson, 20 Q. B. Div. 275, 281.

[(t) ]On this ground the actual decision in Henwood v. Harrison, note (o), p. 236, may have been right; see however the dissenting judgment of Grove J.

[(u) ]Including the conduct at a public meeting of persons who attend it as private citizens: Davis v. Duncan (1874) L. R. 9 C. P. 396, 43 L. J. C. P. 185. A clergyman is a public officer, or at any rate the conduct of public worship and whatever is incidental thereto is matter of public interest: Kelly v. Tinling (1865) L. R. 1 Q. B. 699, 35 L. J. Q. B. 940, cp. Kelly v. Sherlock (1866) L. R. 1 Q. B. at p. 689, 35 L. J. Q. B. 209.

[(x) ]Purcell v. Sowler, 2 C. P. Div. 215, 46 L. J. C. P. 308.

[(y) ]Merivale v. Carson (1887) 20 Q. B. Div. 275, 58 L. T. 331; Jenner v. A’Beckett (1871) L. R. 7 Q. B. 11, 41 L. J. Q. B. 14. Qu. whether the dissenting judgment of Lush J. was not right.

[(z) ]Davis v. Shepstone (1886) J. C. 11 App. Ca. 187, 55 L. J. P. C. 51.

[(a) ]Merivale v. Carson (1887) 20 Q. B. Div. 275, 58 L. T. 331.

[(b) ]Compare the similar doctrine in trespass, which has peculiar consequences. But of this in its place.

[(c) ]Littledale J., 10 B. & C. at p. 272.

[(d) ]Fleming v. Dollar (1889) 23 Q. B. D. 388, 58 L. J. Q. B. 548.

[(e) ]Alexander v. North Eastern R. Co. (1865) 6 B. & S. 340, 34 L. J. Q. B. 152.

[(f) ]Leyman v. Latimer (1878) 3 Ex. Div. 352, 47 L. J. Ex. 470.

[(g) ]Helsham v. Blackwood (1851) 11 C. B. 128, 20 L. J. C. P. 187, a very curious case.

[(h) ]St. 4 Hen. VIII. c. 8 (Pro Ricardo Strode); Bill of Rights, 1 Wm. & M. sess. 2, c. 2, “That the freedome of speech and debates or proceedings in Parlyament ought not to be impeached or questioned in any court or place out of Parlyament.”

[(i) ]Scott v. Stansfield (1868) L. R. 3 Ex. 220, 37 L. J. Ex. 155; the protection extends to judicial acts, see the chapter of General Exceptions above, pp. 104—106, and further illustrations ap. Blake Odgers 188.

[(k) ]Munster v. Lamb (1883) 11 Q. B. Div. 588, where authorities are collected.

[(l) ]Seaman v. Netherclift (1876) 2 C. P. Div. 53, 46 L. J. C. P. 128. But there is no privilege for those who procure other persons to give false and defamatory evidence: Rice v. Corlidge (1876) 121 Mass. 393, Ames, Sel. Ca. 616. For American views on the main question see Ames, op. cit. 438.

[(m) ]Dawkins v. Lord Rokeby (1873-5) Ex. Ch. and H. L., L. R. 8 Q. B. 255, 7 H. L. 744, 45 L. J. Q. B. 8, see opinion of judges 7 H. L. at p. 752; Dawkins v. Prince Edward of Saxe Weimar (1876) 1 Q. B. D. 499, 45 L. J. Q. B. 567.

[(n) ]Goffin v. Donnelly (1881) 6 Q. B. D. 307, 50 L. J. Q. B. 303. A licensing meeting of a County Council is not a Court for this purpose: Royal Aquarium Society v. Parkinson, ’92, 1 Q. B. 431, 61 L. J. Q. B. 409, C. A.

[(o) ]Dawkins v. Lord Paulet (1869) L. R. 5 Q. B. 94, 39 L. J. Q. B. 53, see the dissenting judgment of Cockburn C. J., and the notes of Sir James Stephen, Dig. Cr. L. art. 276, and Mr. Blake Odgers, op. cit. 195. The reference of the Judicial Committee to the case in Hart v. Gumpach (1872) L. R. 4 P. C. 439, 464, 42 L. J. P. C. 25, is quite neutral. They declined to presume that such an “absolute privilege” existed by the law and customs of China as to official reports to the Chinese Government.

[(p) ]The burden of proof is not on the defendant to show his good faith: Jenoure v. Delmege, ’91, A. C. 73, 60 L. J. P. C. 11, J. C. This, however, is or ought to be elementary.

[(q) ]See per Lord Blackburn, 7 App. Ca. 787.

[(r) ]See per Blackburn J. in Davies v. Snead (1870) L. R. 5 Q. B. at p. 611.

[(s) ]Cases of this kind have been very troublesome. See Blake Odgers 217-21.

[(t) ]See Coxhead v. Richards (1846) 2 C. B. 569, 15 L. J. C. P. 278, where the Court was equally divided, rather as to the reasonably apparent urgency of the particular occasion than on any definable principle.

[(u) ]Somerville v. Hawkins (1850) 10 C. B. 583, 20 L. J. C. P. 133.

[(x) ]Spill v. Maule (1869) Ex. Ch. L. R. 4 Ex. 232, 38 L. J. Ex. 138.

[(y) ]Baker v. Carrick, ’94, 1 Q. B. 838, 9 R. Apr. 212, C. A.

[(z) ]Laughton v. Bishop of Sodor and Man (1872) L. R. 4 P. C. 495, 42 L. J. P. C. 11.

[(a) ]Harrison v. Bush (1855) 5 E. & B. 344, 25 L. J. Q. B. 25. Mere belief that the person addressed is officially competent will not do: Hebditch v. MacIlwaine, ’94, 2 Q. B. 54, 9 R. July, 204, C. A. In Harrison v. Bush, however it was held that it was not, in fact, irregular to address a memorial complaining of the conduct of a justice of the peace to a Secretary of State (see the judgment of the Court as to the incidents of that office), though it would be more usual to address such a memorial to the Lord Chancellor. Complaints made to the Privy Council against an officer whom the Council is by statute empowered to remove are in this category; the absolute privilege of judicial proceedings cannot be claimed for them, though the power in question may be exerciseable only on inquiry: Proctor v. Webster (1885) 16 Q. B. D. 112, 55 L. J. Q. B. 150.

[(b) ]Clark v. Molyneux (1877) 3 Q. B. Div. 237, 47 L. J. Q. B. 230.

[(c) ]See Davis v. Shepstone (1886) J. C. 11 App. Ca. 187, 55 L. J. P. C. 51.

[(d) ]See Blake Odgers, op. cit. 185-6. The words of the Act, in their literal construction, appear to throw the burden of proving good faith on the publisher, which probably was not intended.

[(e) ]Per Cur. in Wason v. Walter, L. R. 4 Q. B. at p. 87.

[(f) ]Wason v. Walter, L. R. 4 Q. B. 73, 38 L. J. Q. B. 34. And editorial comments on a debate published by the same newspaper which publishes the report are entitled to the benefit of the general rule as to fair comment on public affairs: ib. Cp. the German Federal Constitution, arts. 22, 30.

[(g) ]Allbutt v. General Council of Medical Education (1889) 23 Q. B. Div. 400, 58 L. J. Q. B. 606.

[(h) ]Kimber v. Press Association, ’93, 1 Q. B. 65, 62 L. J. Q. B. 152, 4 R. 95, C. A.

[(i) ]Usill v. Hales (1878) 3 C. P. D. 319, 47 L. J. C. P. 323, where the proceeding reported was an application to a police magistrate, who, after hearing the facts stated, declined to act on the ground of want of jurisdiction: Lewis v. Levy (1858) E. B. & E. 537, 27 L. J. Q. B. 282.

[(k) ]Macdougall v. Knight (1889) 14 App. Ca. 194, 58 L. J. Q. B. 537. But in Macdougall v. Knight (1890) 25 Q. B. Div. 1, 59 L. J. Q. B. 517, the C. A. adhered to their previous view (17 Q. B. Div. 636, action between same parties) that a correct report of a judgment is privileged.

[(l) ]Hayward & Co. v. Hayward & Son (1886) 34 Ch. D. 198, 56 L. J. Ch. 287.

[(m) ]Williams v. Smith (1888) 22 Q. B. D. 134, 58 L. J. Q. B. 21.

[(n) ]Searles v. Scarlett, ’92, 2 Q. B. 56, 61 L. J. Q. B. 573, C. A., where the publication was expressly guarded: qu. as to Williams v. Smith, see ’92, 2 Q. B. at pp. 62, 63, 64.

[(o) ]51 & 52 Vict. c. 64, s. 3. The earlier cases are still material to show what is a fair and accurate report.

[(p) ]Steele v. Brannan (1872) L. R. 7 C. P. 261 (a criminal case); 51 & 52 Vict. c. 64, s. 3.

[(q) ]Kimber v. Press Association, ’93, 1 Q. B. 65, 62 L. J. Q. B. 152, 4 R. 95, C. A.

[(r) ]Stevens v. Sampson (1879) 5 Ex. Div. 53, 49 L. J. Q. B. 120.

[(s) ]51 & 52 Vict. c. 64, s. 4. The ill-drawn enactment of 1881 for the same purpose, 44 & 45 Vict. c. 61, s. 2, is repealed by sect. 2 of this Act. As to boards of guardians, see Pittard v. Oliver, ’91, 1 Q. B. 474, 60 L. J. Q. B. 219, C. A.

[(t) ]51 & 52 Vict. c. 64, s. 4. In a civil action on whom is the burden of proof as to this? See Blake Odgers 381-3, on the repealed section of 1881, where however this qualification was by way of condition and not by way of proviso.

[(u) ]Williamson v. Freer (1874) L. R. 9 C. P. 393, 43 L. J. C. P. 161.

[(x) ]Pittard v. Oliver, ’91, 1 Q. B. 474, 60 L. J. Q. B. 219, C. A.

[(y) ]Hebditch v. MacIlwaine, ’94, 2 Q. B. 54, 9 R. July, 204, C. A.

[(z) ]A statement made recklessly under the influence of e.g. gross prejudice against the plaintiff’s occupation in general, though without any personal hostility towards him, may be malicious: Royal Aquarium Society v. Parkinson, ’92, 1 Q. B. 431, 61 L. J. Q. B. 409, C. A.

[(a) ]Jenoure v. Delmege, ’91, A. C. 73, 60 L. J. P. C. 11 (J. C.).

[(b) ]Clark v. Molyneuz (1877) 3 Q. B. Div. 237, 47 L. J. Q. B. 230, per Bramwell L. J. at p. 244; per Brett L. J. at pp. 247-8; per Cotton L. J. at p. 249.

[(c) ]Laughton v. Bishop of Sodor and Man (1872) L. R. 4 P. C. 495, 42 L. J. P. C. 11, and authorities there cited; Spill v. Maule (1869) Ex. Ch. L. R. 4 Ex. 232, 38 L. J. Ex. 138.

[(d) ]Praed v. Graham (1889) 24 Q. B. Div. 53, 55, 59 L. J. Q. B. 230.

[(e) ]The Rules of Court of 1875 had the effect of enlarging and so far superseding the latter provision; but see now Order XXII. r. 1, and “The Annual Practice” thereon. See also 51 & 52 Vict. c. 64, s. 6.

[(f) ]Parnell v. Walter (1890) 24 Q. B. D. 441, 59 L. J. Q. B. 125.

[(g) ]Wood v. Durham (1888) 21 Q. B. D. 501, 57 L. J. Q. B. 547.

[(h) ]Bonnard v. Perryman, ’91, 2 Ch. 269, 60 L. J. Ch. 617, C. A. p. 179, above; for a later example of injunction granted, see Collard v. Marshall, ’92, 1 Ch. 571, 61 L. J. Ch. 268.

[(i) ]Salomons v. Knight, ’91, 2 Ch. 294, 60 L. J. Ch. 743, C. A.