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Subject Area: Law
Topic: The American Revolution and Constitution

§ 19.: Security to reputation—Privileged communications. 3 — - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 1 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 1.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 19.

Security to reputation—Privileged communications.3 —

A man’s reputation, the opinion entertained of him by his neighbors, is another valuable possession, and the security to which is most jealously, but, it must be confessed in most cases, ineffectually guarded against infractions. The breath of suspicion, engendered by a slanderous lie, will tarnish a fair name, long after the injurious statement has been proved to be an unfounded falsehood. But the aim of all legislation on the subject is to provide the proper protection against slander and libel, and failure in ordinary cases is caused by the poverty of the means of penal judicature, and does not arise from any public indifference. But dear to man as is the security to reputation, there are cases in which it must yield to the higher demands of public necessity and general welfare. Malice is generally inferred from a false and injurious statement or publication, and the slanderer and libeler are punished accordingly. But there are special cases, in which for reasons of public policy, or on account of the rebuttal of the presumption of malice by the co-existence of a duty to speak or an active interest in the subject, the speaker or writer is held to be “privileged,” that is, relieved from liability for the damage which has been inflicted by his false charges. These privileged communications are divided into two classes: first, those which are made in a public or official capacity, and which for reasons of public policy are not permitted to be the subject of a judicial action; and secondly, all those cases in which the circumstances rebut the presumption of malice. In these cases of the second class, the privilege is only partial. As already stated, the circumstances are held to rebut the presumption of malice, and throws upon the plaintiff the burden of proving affirmatively that the defendant was actuated by malice in making the false statement which has injured the plaintiff’s reputation. In these cases the proof of express malice revives the liability of the alleged slanderer.1 As Mr. Cooley says, “they are generally cases in which a party has a duty to discharge which requires that he should be allowed to speak freely and fully that which he believes; or where he is himself directly interested in the subject-matter of the communication, and makes it with a view to the protection or advancement of his own interest, or where he is communicating confidentially with a person interested in the communication, and by way of advice.”1 The cases of a private nature are very numerous, and for a full and exhaustive discussion of them, reference must be made to some work on slander and libel. Under this rule of exemption are included answers to inquiries after the character of one who had been employed by the person addressed, and who is soliciting employment from one who makes the inquiry,2 the answer of all inquiries between tradesmen concerning the financial credit and commercial reputation of persons who desire to enter into business dealings with the inquirers.3 While the private reports of mercantile agencies are privileged,4 the published reports of such agencies, which are distributed among the customers, are held not to constitute one of the privileged classes.5

All bona fide communications are privileged, where there is a confidential relation of any kind, existing between the parties in respect to the subject-matter of the inquiry. “All that is necessary to entitle such communications to be regarded as privileged is, that the relation of the parties should be such as to afford reasonable ground for supposing an innocent motive for giving the information, and to deprive the act of an appearance of officious intermeddling with the affairs of another.”1

The first class of privileged communications, enumerated above, is absolutely privileged, and there is no right of action, even though the false statement is proved to be prompted by malice. They are few in number, and the privilege rests upon public policy, and usually have reference to the administration of some branch of the government. They will be discussed in a regular order.

[3]In this and succeeding sections, which relate to security to reputation, the law has remained unchanged, and, as the inclusion of this subject in the present volume may be considered as a reduction of it to an academic question, I have not attempted to collect the later cases which have involved these questions.

[1]“It properly signifies this and nothing more; that the excepted instances shall so far change the ordinary rule with respect to slanderous or libelous matter as to remove the regular and usual presumption of malice, and to make it incumbent on the party complaining to show malice.” Daniel, J., in White v. Nichols, 3 How. 266, 287. See Lewis v. Chapman, 16 N. Y. 369.

[1]Cooley Const. Lim. 425.

[2]Pattison v. Jones, 8 B. & C. 578; Bradley v. Heath, 12 Pick. 163; Hatch v. Lane, 105 Mass. 394; Elam v. Badger, 23 Ill. 498; Noonan v. Orton, 32 Wis. 106. So also is a subsequent communication to one who had employed a clerk upon the former’s recommendation, of the facts which have induced a change of opinion. Fowles v. Bowen, 30 N. Y. 20.

[3]Smith v. Thomas, 2 Bing. N. C. 372; White v. Nichols, 3 How. 266; Cooley on Torts, 216.

[4]Lewis v. Chapman, 16 N. Y. 369; Ormsby v. Douglass, 37 N. Y. 477.

[5]Taylor v. Church, 8 N. Y. 452; Sunderlin v. Bradstreet, 46 N. Y. 188 (7 Am. Rep. 322). See note 2, p. 55.

[1]Lewis v. Chapman, 16 N. Y. 369. See Todd v. Hawkins, 8 C. & P. 88; Cockagne v. Hodgkisson, 5 C. & P. 543; Klinck v. Colby, 46 N. Y. 274 (7 Am. Rep. 360); Joannes v. Bennett, 5 Allen, 170; Hatch v. Lane, 105 Mass. 394; Fitzgerald v. Robinson, 112 Mass. 371; State v. Burnham, 9 N. H. 34; Knowles v. Peck, 42 Conn. 386 (19 Am. Rep. 542); Goslin v. Cannon, 1 Harr. 3; Grimes v. Coyle, 6 B. Mon. 301; Rector v. Smith, 11 Iowa, 302.