36613353 outline of the law of libel

7/28/2019 36613353 Outline of the Law of Libel

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Cornell University LibraryKD 1960.Z9O23An outline of the law of libel :six lect

3 1924 022 237 733


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Cornell UniversityLibrary

The original of this book is inthe Cornell University Library.

There are no known copyright restrictions inthe United States on the use of the text.

http://www.archive.org/details/cu31924022237733


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AN OUTLINE

THE LAW OF LIBEL


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AN OUTLINEOF

THE LAW OF LIBELSIX LECTUEES

DELIVERED IN THE MIDDLE TEMPLE HALLDURING MICHAELMAS TERM, 1896

BY

W. BLAKE ODGERSOF THE MIDDLE TEMPLE, M.A., LL.D., Q.C.

AUTHOR OF ADIGEST OF THE LAW OF LIBEL AND SLANDER

ILonlronMACMILLAN AND CO, Limited

NEW YORK : THE MACMILLAN COMPANY1897

A 11 rights reserved


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PAGE

CONTENTSLIBEL

Libel distinguished from Slander . . lWhat words are libellous . . 9The reputation of some person must have been

injured... . . 12Slander of Title . 15Trade-Libel . . 15Action on the case . . . 17Libel on a Corporation . .22Necessity for publication to some third person . . 24Publication to a wife . .27Innocent dissemination of a libel 30Must be a publication by the defendant 31

II

FAIR COMMENT ON A MATTER OF PUBLICINTEREST

Every one has a right to make such comments 36Such comments are not privileged 38


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THE LAW OF LIBELPAGE

They are not libellous 42Criticism . 43What are matters of public interest . 53Allegations of fact are not comments 59The limits of a fair comment . 64Can a fair comment be published maliciously . 67

III

CONSTRUCTION AND TRUTHMeaning of the words employed 7Words prima facie innocent 74Innuendo . 77Certainty as to the person libelled . 82Certainty of the imputation 86Defences to an action of libel 94

Justification . 95Truth of the words 95Truth of part of the words 102Justifying the innuendo . 105

IVPRIVILEGE

Privileged Occasions in general 107When malice need be proved 109

I. Absolute Peivilege . . 116Parliamentary proceedings 117Judicial proceedings 119Acts of State, etc. 121


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CONTENTS viiPAGE

II. Qualified Privilege 122Duty and Interest 122Answers to confidential inquiries 123Communications volunteered 124Communications made in self-defence 131Where both parties have a common interest 133

PRIVILEGED REPORTS, MALICE, Etc.Qualified Privilegecontinued 138

Reporting the words of others , 139Reports of judicial proceedings . 142Reports of Parliamentary proceedings . 148Reports of proceedings at a public meeting. 154Newspaper Libel Act, 1881 . 158Law of Libel Amendment Act, 1888 161

Malice 164Extrinsic evidence of malice 165Intrinsic evidence of malice 166

Damages 172Costs 174

VICRIMINAL LAW

Distinction between a crime and a tort 176To publish a libel is both a tort and a crime 1 78


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111 THE LAW OF LIBEL


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LIBELI have been asked by the Council of LegalEducation to deliver six lectures on the Lawof Libel. It was originally proposed that Ishould include the law of slander, but I feltthat it would be impossible, in a course of sixlectures, to deal satisfactorily with more thanthe law of libel. We have accordingly nothingto do to-night with the law of slander, exceptmerely to distinguish slander from libel. Aslander, as you know, is spoken defamation ;a libel is written or printed defamation. Or;i libel may take the form of an effigy or apicture ; it must be something permanent inits character, not fleeting like spoken words.You will remember the action which Mr.Monson brought against Madame Tussauds,Limited, for a wax-work figure, which was

B


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2 THE LAW OF LIBEL Iundoubtedly a good likeness of him, but which,acquired a defamatory meaning from the situa-tion in which the defendants thought fit toplace it. So, too, a caricature in Vanity Fairmay be a libel, though it generally is not.This, then, is the chief distinction between libeland slander : that a slander is merely spoken,a libel is written or printed or otherwise per-manently recorded.

There is another distinction, which I mustmention in passing, though I shall deal withit more in detail in my sixth lecture. Towrite and publish a libel on a private individ-ual is a crime as well as an actionable wrong

;but to slander a private individual is no crimeat all.A third distinction is the one which con-cerns us most to-night. In many cases wordswill be actionable if written or printed andpublished, which would not be actionable ifmerely spoken. Any words which injure thereputation of the plaintiff are libellous, whenwritten. But if the words be merely spoken,the plaintiff has to prove a great deal morebefore he can recover damages. He mustsatisfy the jury that the words impute thathe has committed a crime, or that he is suffer-


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I LIBEL 3ing from a contagious disorder, or that theydisparage him in the way of his office, pro-fession, or trade ; or, if the plaintiff be awoman or girl, that the words impute to heradultery or unchastity. In all other cases,the plaintiff must prove what is called specialdamage ; that is, that he has sustained somepecuniary loss as a direct consequence of thedefendant's uttering the words. Now, in anaction of libel it is never necessary to provespecial damage. Of course, if pecuniary losshas been caused to the plaintiff by the publi-cation of the libel, he will prove this fact toincrease his damages ; but it is not necessaryfor a plaintiff in an action of libel to showany such pecuniary loss ; he can recoverdamages without it.

You will at once ask, Why is this ? Thatis a very proper question for a student of ourlaw to ask. He should always try to get atthe reasons for everything. Whether he willsucceed in discovering them . to . his satisfac-tion is another matter ! Now, there are twogood reasons and one bad one which aregenerally given for this distinction betweenlibel and slander :

1. A slander may be uttered in the heat of


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4 THE LAW OF LIBEL ithe moment, and under a sudden provocation ;the reduction of the charge into writing andits subsequent publication in a permanentform show greater deliberation and raise asuggestion of malice.

2. The written or printed matter is per-manent, and no one can tell into whose handsit may come. Every one now can read. Thecirculation of a newspaper is enormous, espe-cially if it be known to contain libellous matterand many people implicitly believe every wordwhich they see in print merely because it is inprint. And even a private letter may turn upin after-years, and reach persons for whom itwas never intended, and so do incalculablemischief. Whereas a slander only reaches theimmediate bystanders, who can observe themanner and note the tone of the speaker,who have heard the rest of the conversationwhich may greatly qualify his assertion,whoprobably are acquainted with the speaker, andknow what weight is to be attached to anycharge made by him ; the publicity is thusmuch less in extent, and the mischief lessdurable.

3. Those are the two good reasons. Anotherreason often assigned is that a libel conduces


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i LIBEL 5to a breach of the peace and that a slanderdoes not. But I doubt that. I think youare just as likely to cause a breach of thepeace if you abuse a man to his face byspoken words, as if you wrote him a letterexpressing your sentiments with equal force.That is what I have ventured to call a badreason.

But some of you look as if you were anxiousto let me know that you are not convinced bywhat I have called the two good reasons,any more than by the bad one. " They maybe very good reasons," you would like to say," why a plaintiff should recover a smalleramount of damages in an action of slanderthan in an action of libel for the same wordsbut they do not appear to me to go to theroot of the matter, or to be any satisfactoryexplanation for your statement that certainwords if written are actionable, whereas thesame words if merely spoken are not. Theconsiderations which you have been urging donot go to the cause of action, but only to theamount of damage done. If the plaintiff'sreputation has in fact been injured by thespoken words, he ought to be allowed torecover some damages, although it may be


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6 THE LAW OF LIBEL itrue that, had the words been written, hewould have been entitled to more."

Well, that is, I confess, a very sensibleargument, and it is no original idea of yours.It is exactly the argument which that eminentlawyer, Mr. Barnewall, addressed to the Courtof Error in 1812 in the case of Thorley v.Lord Kerry, 4 Taunton, 355. But the Courtreplied that he was even then too late toraise the point. Sir James Mansfield, L.C.J.felt the weight of Mr. Barnewall's arguments,and was almost persuaded to repudiate the dis-tinction between written and spoken scandal ;but he found on looking into the authoritiesthat that distinction had been established bysome of the greatest judges known to ourlaw : by Hale, C.B., in 1678, by Lord Holt,C.J., in 1694, and by Lord Hardwicke, C.J.,in 1737. And so the full Court decided thatthey could not in opposition to these old cases" venture to lay down at this day that noaction can be maintained for any wordswritten, for which an action could not bemaintained if they were spoken." And if itwas too late to disturb this well-recogniseddistinction in 1812, a fortiori it is too lateto attempt to shake it in 1896. It is clear


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i LIBEL 7law, then, that an action of libel will lie formany words which are not actionable if merely ispoken. You may call a man a liar or acoward or a libertine with impunity, but becareful not to write him down an ass !

For after all there is a solid distinctionbetween a spoken slander and a printed libel.Take, for instance, the case of Cook v. Ward,which was decided in 1830 (6 Bing. 409).There the plaintiff had himself told a party offriends a humorous story against himself, howhe had once been mistaken for Jack Ketchat an inn in Bury St. Edmunds during theAssizes. Thereupon the defendant meanlypublished the story in his newspaper for allthe world to read, adding some embellish-ments of his own ; and the plaintiff was inconsequence pointed at and called " JackKetch" at a meeting of the burgesses of Col-chester, in which ancient borough he servedthe important office of assistant overseer. Hesued the proprietor of the paper for libel, andit was urged that he ought not to recover anydamages because he had told substantiallythe same story himself. But the judges wouldnot listen to this argument. Tindal, C.J.,laid especial stress on the fact that " there is


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8 THE LAW OF LIBEL ia great difference between a man's telling aludicrous story of himself to a circle of hisown acquaintance, and a publication of it toall the world through the medium of a news-paper." And see Dolby v. Neivnes, 3 TimesL.R. 393.A libel, then, must be written or printed orotherwise permanently recorded. It may bewritten on paper, parchment, copper, wood, oranything else. It may be written with penand ink, or black lead pencil, or in chalk, orcolours. A statue or a picture may be a libel,and so may any other mark or sign exposedto public view and conveying a defamatorymeaning. A chalk mark on a wall may be alibel on the plaintiff ; and because the wallcannot be conveniently brought into court, ithas been solemnly decided that secondaryevidence may be given of the words whichwere chalked on it. Burning a man in effigy,or fixing up a gallows or other' reproachful orignominious sign against his front-door, maybe a libel on him. This is law as ancient as1598 ; see Lord Coke De famosis libellis, 5Eep. 125, b.

Next, the words which are so written orprinted or otherwise permanently recorded


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i DEFAMATORY "WORDS 9must be defamatory : that is, they must haveinjured the reputation of some one, must havemade people think worse of him. I do notknow that I can give you a better definitionof a libel than that. If you have publishedwords about me which have made peoplethink worse of me, then you have injured myreputation, and your words are libellous.

And since I cannot give you a better defi-nition, let us take one or two instances. Isit a libel to write and publish of a man thathe is a Roman Catholic ? In these days, cer-tainly not. Many of the best and noblestof mankind have belonged to that ancientChurch, and the fact that a few ultra-Pro-testants might think the worse of a man forbeing a Roman Catholic shall make no differ-ence. But I doubt if a Dublin jury wouldhave taken this view of the matter in the lastcentury. And in England, so long as thepenal statutes against Papists were in force,the words would undoubtedly have beenactionable. Then, again, surrounding circum-stances may alter the case. Suppose a candi-date for Parliament, in answer to a question putto him at an election meeting, had stated thathe was a Protestant ; then for the opposition


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10 THE LAW OF LIBEL 1newspaper to print and publish that he reallywas a Roman Catholic, would be a libel onhim : for this would amount to saying thathe was a hypocrite and a liar.

Again, it is not libellous in England to de-scribe the plaintiff in writing as " Man Friday "to some one else. "Man Friday," as LordDenman remarked, "was a very respectableman." But such words would be actionablein the United States. They are not so fondof black men in America as we are here.

Take another instance. Lord WilliamNevill was for some time agent for an insur-ance company ; but he resigned his agencybecause he was not satisfied with the termsoffered him by the company. Thereupon thesecretary of the company sent out a circularto all thfe policyholders who had been intro-duced by the plaintiff, giving them the addressof the company's new west-end office, andadding, what was not true, that the agency ofLord William Nevill had been closed by thedirectors. The plaintiff alleged that these wordswould be taken to mean that he had been dis-missed by the directors from his employmentas their agent for some reason discreditable tohim, and that the words were therefore a libel


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I DEFAMATORY WORDS 11on him. The jury found that the circular wasa libel, and assessed the damages at 100, andBaron Pollock gave judgment for the plaintifffor that amount. The Court of Appeal wasvery doubtful about the matter ; but therewas the verdict, and they did not like to upsetit. The Master of the Rolls said, " It seemsto me that the terms of that circular comeas nearly as possible to being incapable of adefamatory meaning." But " it would be forthe jury to say whether it was a libel or not.I am unable to say that the finding of thejury on that question was wrong " (Nevill v.Fine Arts and General Insurance Company,Limited, 1895, 2 Q.B. at p. 168). But nowthe House of Lords has taken the bull by thehorns, and declared that the circular was nota libel, and could not be construed into a libel,and that the plaintiff ought to have been non-suited at the trial on the ground that he hadno case to go to the jury (13 Times L.R. 97).

So you see it is not always easy to saybeforehand whether a particular paragraph orcircular is a libel or not. Unless the wordsare clearly incapable of any defamatory mean-ing, the judge at the trial will not stop thecase. He will explain to the jury the law as


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12 THE LAW OF LIBEL ito what libel is; he may, if he thinks fit,tell them his own opinion of the words beforethem ; and then he will leave it to the jury,as men of common sense, to say whether thewords are a libel or not. And the jury as arule decides that question rightly.

To be libellous, then, the words must haveinjured the reputation of some person, and thatperson must be the plaintiff. The plaintiffcannot sue for words which are defamatory ofsome one else. And an attack on a thing isnot a libel on the individual who owns thatthing. To illustrate this distinction let merefer you to a recent Australian case, whicharoused considerable attention in the news-paper world (Australian Newspaper Com-pany, Limited v. Bennett, 1894, A.C. 284).The circumstances which gave rise to theaction were curious.A sculling race between two professional

oarsmen, Kemp and M'Lean, was rowed onthe Parramatta River, in New South Wales,on the afternoon of Thursday the 1 5th of May1890, resulting in a victory for Kemp. Onthe same afternoon an account of the race waspublished in two editions of the EveningNews, a newspaper published in Market Street,


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i DEFAMATORY WORDS 13Sydney. The greater number of the copiesprinted of both editions contained the correctstatement that Kemp had won. But unfor-tunately in some 1250 copies of the lateredition M'Lean was announced in large typeas the winner, and this announcement wasfollowed by a paragraph headed " Details,"from which it appeared that, on the contrary,Kemp had won the race. There was alsosome evidence to prove that, in a few of thecopies of the earlier edition of the EveningNetvs published the same afternoon, the an-nouncement was made in large type thatM'Lean had won the race, and that in thesepapers there were no " Details " published fromwhich the truth could be ascertained. Theerror in the incorrect copies arose from theirbeing inadvertently struck off from a plate,which had been prepared before the race wasrowed, to meet the possible case of M'Leanwinning the race.

Thereupon the Australian Star, a rivalSydney newspaper, published an article " chaff-ing" their contemporary on this "fearfulblunder." They referred to"The terrible bungle made by the Evening News.First, it triumphantly told a wondering public, who


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14 THE LAW OF LIBEL Ihad previously absorbed the correct result from theStar, that M'Lean had got home first. Then it doubledback in a following edition, and told a wondering worldin effect that the preceding edition was an unmitigatedperversion of the truth, and that both Kemp andM'Lean had come out on top."

And in another part of the paper appearedthese words :

" It is, to say the very least of it, rather rough onM'Lean, after having won the boat-race in MarketStreet, to be adjudged the loser everywhere else.According to the Market Street evening Ananias, bothKemp and M'Lean won the boat-race yesterday. Poorlittle silly Noozy !

Thereupon Mr. Bennett, the proprietor ofthe Evening News, brought an action of libel,urging that the word " Ananias " necessarilyinvolved deliberate lying, and imputed per-sonal dishonesty to himself. But the JudicialCommittee of the Privy Council held that thiswas not so, and upheld the verdict of the jurythat there was no libel. For in this case itwas clear from the context that the commentdealt solely with the production, not the man.No newspaper proprietor could intentionallydesire to perpetrate such a mistake as hadbeen made in the plaintiff's paper ; the word" Ananias" was applied to the newspaper, not


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i SLANDER OF TITLE 15to the plaintiff, and, though in bad taste, itdid not in that context amount to a libel.

Hence you may take it as a general pro-position of law that words which merely de-preciate some thing, or impugn the plaintiff'stitle to some property, are not defamatory inthe strict sense of that term. They may incertain events give rise to an action, but notto an action of libel proper. Actions for suchwords are governed by different rules from anaction of the kind I am dealing with to-nightan action for words defamatory of a person.You will find the law relating to those otheractions under such headings as " Slander ofTitle" and "Trade-Libel."

" Slander of Title " is the term usually,employed to include all statements, whetherwritten or spoken, which impeach a man'stitle to any property, real or personal. Suchwords clearly do not affect his reputation.You would, I hope, think just as highly of me,whether I owned Blackacre or not.A " Trade-Libel " is a statement, whetherwritten or verbal^ which does not attack aman's moral character, or question his solvency,or in any way affect his private or professionalreputation,"but which has in fact injured his


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16 THE LAW OF LIBEL ibusiness and caused him pecuniary loss in theway of his trade. Such statements may eitherdisparage the quality of the goods which theplaintiff sells, or assert that they are not thegoods which he represents them to be, or thatthey are an infringement of somebody's patentor copyright. So, too, words urging or warningpeople not to deal with the plaintiff, or not topay him money due to him, or to bringactions against himany words, in short,which, though not personally defamatory, areyet clearly calculated to injure the plaintiff inhis trade will be actionable if the plaintiffcan prove that they are false, that they werepublished " without lawful occasion," and thatdamage has in fact resulted to him from theirpublication. You will find a very recentinstance of this kind of action in the LawReports of 1892. I refer to the case of Rat-cliffe and Sons v. Evans, 1892, 2 Q.B. 524.There the defendant, who either knew or oughtto have known the contrary, published in hisnewspaper that the plaintiffs had ceased tocarry on business as engineers and boiler-makers, and that the firm of Ratcliffe and Sonshad ceased to exist. This was no libel in theordinary sense of the word. It was rather to


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I LIBEL 17the credit of the Messrs. Ratclifl'e that they hadbeen so successful in their business that theycould now afford to retire on a handsomecompetency. But the paragraph was untrue,and the publication of it did great injury tothe business of that firm. Messrs. Ratcliffeand Sons therefore recovered damages.

Then there is another whole category ofwords which are not really defamatory at all,which do not injure the personal reputation ofanybody, or disparage the goods which he sells,or impeach his title to any property, and yetif they be uttered with deliberate malice byone who knows that their utterance will un-doubtedly cause loss to the plaintiff, then, ifsuch loss does in fact follow from their utter-ance, an action will lie against the defendantfor maliciously doing the plaintiff an injury.But that is not an action of libel at all. It iswhat is called " an action on the case." Letme give you one or two instances to make mymeaning clear. Suppose there are only twogrocers in the town of Eatanswill, and one ofthem maliciously spreads a false report thatthe children of the other grocer, who liveover the shop, have the scarlet fever. Thereputation of the poor children is not injured,


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18 THE LAW OF LIBEL rThe goods which the father sells are not dis-paraged, nor is his title to them impugned.But it is quite clear that the spreading of thismalicious invention will do incalculable damageto the trade of the unhappy father, and there-fore an action lies. You will find authorityfor this proposition in the judgment of Kelly,C.B., in Riding v. Smith, 1 Ex. D. at p. 96.Take another instance : in the case of Kelly v.Partington, which you will find in the fifthvolume of Barnewall and Adolphus' Reports,the Solicitor-General, Sir John Campbell, con-tended that if praise produced special damage,such praise was actionable ; and Littledale, J.put him a case (p. 648)" Suppose a man hada relation of a penurious disposition, and athird person, knowing that it would injure himin the opinion of that relation, tells the lattera generous act which the first had done, bywhich he induces the relation not to leave himmoney, would that be actionable 1 " And SirJohn Campbell answers" If the words werespoken falsely with intent to injure, they wouldbe actionable." And clearly he was right.

There is another reason why you must care-fully distinguish cases of malicious injury to aman's business from cases of personal libel


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I TRADE-LIBEL 19and that is this : the cause of action for aninjury to a man's reputation dies with him,whereas an action for trade -libel survives tohis executors. They can recover damages forthe injury done to the business, because thevalue of the estate which comes into theirhands has been to that extent diminished.This distinction is clearly pointed out in arecent case of Hatchard v. Mege and others,1887, 18 Q.B.D. 771. There the defendantsinserted in the newspapers a paragraph to thefollowing effect

" CAUTION"DELMONICO CHAMPAGNE

" Messrs. Delbeck & Co., finding that wine stated tobe Delmonico Champagne is being advertised for salein Great Britain, hereby give notice that such winecannot be the wine it is represented to be, as nochampagne shipped under that name can be genuineunless it has their names on their labels. Messrs.Delbeck & Co. further give notice that if such wine beshipped from France they will take proceedings to stopsuch shipments, and such other proceedings in Englandas they may be advised."

Now, which was this ? Was there anyreflection on the character of Mr. Hatchard,who was advertising Delmonico Champagne for


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20 THE LAW OF LIBEL Isale, or was it simply a denial of his right touse the name " Delmonico Champagne " on hislabels ? Mr. Hatchard brought his action, andafter the pleadings were closed he died, and hisexecutors carried on the proceedings. Now ifthe words were merely a personal imputationupon Mr. Hatchard, the action died with him.But if they were an attack on his right to use alabel, that survived to his executors. Whichdo you think it was ? I see some of you thinkit was a personal libel on Mr. Hatchard;others of you think that it was merely anattack on his labels. Well, you are both right.The Court decided that the first sentence inthe paragraph, which asserted that the plain-tiff's wine was not the wine which he representedit to be, was a personal charge against Mr.Hatchard of misrepresentation, and all claimfor damages for those words died with him. 'The rest of the paragraph was a trade -libel, w$.and for those words the action could be con- :tinued by the executors. Lord Coleridge had "^non -suited the executors at the trial on theground that the action came to an end on thedeath ofthe original plaintiff; but the Divisional

;

Court granted a new trial. The executorsaccordingly went on with the action, and


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I TRADE-LIBEL 21eventually failed to recover any damages atall ; because the jury were satisfied that therewas no malice on the part of the defendants ;they had merely published that advertisementto protect what they honestly believed to betheir rights. See the report of the second trialin the fourth volume of the Times Law Eeportsat page 118.For in all these cases of slander of title,trade-libel, and actions on the case for maliciousinjury, the plaintiff must prove (a) that thewords are false ; (6) that they were publishedmaliciously ; * (c) that they have caused himspecial damage ; otherwise he can obtainneither damages nor an injunction ( Wliite v. iMellin, 1895, A.C. 154). But in an ordinary Jaction of libel, when the words are defamatoryof some individual, he need prove none of thesethings ; except that in one casewhen thewords were published on a privileged occasionhe must prove malice, as I shall explainhereafter. Whether the words be privileged

1 In the case of an action brought against a patentee for"threats" under Sec. 32 of the Patents, Designs, and TradeMarks Act, 1883 (46 and 47 Vict. c. 57), the plaintiff need notprove malice. But this, though often classed with actions fortrade-libel, is really a new statutory action sui generis, with apractice and procedure of its own.


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22 THE LAW OF LIBEL Ior not, he need never prove any special damage,so long as the words are defamatory. Norneed he prove that they are false : it is forthe defendant to prove that they are true, ifhe can.

And now I must call you back from thesemiscellaneous actions, and ask you to confineyour attention to actions of libel proper, thegist of which, as I have already told you, is theinjury to the reputation of some person. Theother actions to which I have been referring,though akin to actions of libel, are not strictlyactions of libel at all, because in them thereputation of no person is injured. You mayask what I mean by a person. Is a corpora-tion a person ? Well, it is, and it is not. Itis a limited kind of person. Can a corpora-tion sue, if its reputation is injured ? Thatdepends on a previous question, Has it a re-putation that can be injured ? Only in arestricted sense. A corporation is not allowedto possess a reputation for any mere abstractvirtue. It is not like an individual, who cansue for words which impugn his honour orimpute that he lacks generosity, commonsense, or good taste. If a season-ticket holderabuses a railway company for treating him


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i CORPORATION 23shabbily, probably no action would lie. Butit might be a different matter if he accusedthe company of habitual, though uninten-tional, unpunctuality. No one would thinkthe worse of them morally for that, but itwould tend to reduce the number of season-ticket holders. It is very doubtful whether acorporation can sue for words which merelyaffect its dignity or honour. In the case ofthe Mayor and Corporation of Manchesterv. Williams, 1891, 1 Q.B. 94, it was doubtedwhether a corporation could have any reputa-tion apart from its property or trade. But acorporation can undoubtedly sue for any wordswhich affect its property, or injure its tradeor business (South Hetton Coal Company,Limited v. North-Eastern News Associa-tion, Limited, 1894, 1 Q.B. 133). It cannotbring an action in respect of any words whichimpute to it conduct of which a corporationphysically cannot be guiltysuch as murderor corruption (Metropolitan Omnibus Com-pany v. Haivhins, 1859, 4 H. & N. at p.90). Nor can it sue for any words which are alibel or a slander, not on it, but on its membersindividuallyunless, indeed, special damagehas thereby been caused to the corporation.


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24 THE LAW OF LIBEL iAnd now let us assume that the plaintiff

has satisfied the jury that the words arelibellous, that is, he has shown that they werewritten or printed, or recorded in some moreor less permanent form by the defendant, andthat they were such words as would injure thereputation of the plaintiff. Still, to succeedin an action of libel, the plaintiff must provesomething more. He must prove publication.He must prove a publication by the defendanta publication in fact, and not merely inintention. He cannot recover damages forwhat might have happened, but did notbecause in that event no injury has been doneto his reputation. Merely composing a libelis not actionable. Merely writing a libel isnot actionable, unless it be subsequently pub-lished. And no cause of action arises if thewords are only communicated to the personlibelled ; for that does not injure his reputa-tion, though it may wound his self-esteem. Aman's reputation is the estimate in whichothers hold him, not the good opinion which ;| ;he has of himself. It may be that the de-fendant desired and intended, and did all inhis power to publish, words defamatory of theplaintiff, yet if they never reach the eye of


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I PUBLICATION 25any one except the plaintiff, no action lies.To be actionable, the defamatory words mustbe published by the defendant to some personother than the plaintiff.

I will give you a few examples to illustratethis rule, that the plaintiff must show a publi-cation to a third person. .

The defendant wrote a letter to the plaintiffand sent it to him by post direct. But beforehe posted it a friend dropped in, and the de-fendant could not resist the opportunity ofletting his friend know what a smart letter hehad just written to the plaintiff. So he readthe letter to him. That was clearly a publica-tion to the friend.

Or, suppose before posting it direct to theplaintiff, he gave it to a clerk to copy, thatagain is a publication by the defendant to hisown clerk.

The managing director of the defendantcompany dictated a letter, containing wordsdefamatory of the plaintiff, to a shorthandclerk, who transcribed it by a type -writing-machine. The type-written letter was thensigned by the managing director, press-copiedby the office boy, placed in an envelope, andsent direct to the plaintiff's office. This was


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26 THE LAW OF LIBEL Iheld by the Court of Appeal to be a publica-tion both to the type-writer and to the officeboy (Pullman v. Hill and Company, 1891,1 Q.B. 524).

The defendant wrote libellous words on apost-card, which he addressed to the plaintiff,and posted. The .words were read by thepostman and by the plaintiff's housemaid whotook his letters in. Perhaps the defendantnever intended them to read what he wrote.Still this is undoubtedly a publication by himto them. He should not have used a post-card. In practice, whenever the defendantuses a post-card, the plaintiff is not expectedto prove that there has in fact been a publica-tion ; it is for the defendant to prove thatthere has not.

So if the defendant sends a message bytelegram instead of in an envelope properlyfastened up, this is clearly a publication bythe defendant to at least two telegraph clerks.

The defendant wrote a letter and gave itto B to deliver to the plaintiff. It was folded,but not sealed, so B could have read it if hehad thought fit. B did not read it, but con-veyed it direct to the plaintiff. This is nopublication.


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I PUBLICATION 27The defendant threw a sealed letter ad-

dressed to the plaintiff, "or C," into M'senclosure. M picked it up and delivered itunopened to the plaintiff himself, who alonewas libelled. No publication, for neither Cnor M read the letter.

Posting up a libellous placard and takingit down again before any one could read it, isno pubbcation. If, however, it was exhibitedlong enough for any one to read it, then thedefendant must satisfy the jury that no oneactually did read it.

Now, what about a publication to a man'swife ? Is she sufficiently a third person tosatisfy this rule ? There is, as you know, anold rule of law that a husband and his wifeare one ; and this is still law for many pur-poses, in spite of all the Married Women'sProperty Acts. Thus, a husband is still liableto pay damages for a libel published by hiswife, even though she published it without hisknowledge or consent. But it does not followthat you may publish a libel on A to A's wifewith impunity. That would never do. Mrs.A is the last person in the world to whom Mr.A would wish such a communication to bemade. Hence it has been held that an action


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28 THE LAW OF LIBEL Ilies if the defendant publishes a libel on theplaintiff to the plaintiff's wife ( Wenman v.Ash, 13 C.B. 836). On the other hand, thelaw flings its protecting segis over all conver-sations and communications between husbandand wife. They may criticise the conduct oftheir friends and neighbours to their heart'scontent, so long as no one else shares theirconfidences. Such an interchange of opinionis not in law a publication at all ( Wennhahv. Morgan, 20 Q.B.D. 635). I confess Ishould have thought it was a publication,but a privileged one. The Divisional Court,however, knows better, and it decidedthat no action lies for a libel written by ahusband and published by him only to hiswife.

I told you just now that although thedefendant may have desired and intended,and may have done all in his power, to pro-cure a publication of defamatory words, still noaction lies if they never reach the eyes of anyone except the plaintiff himself. Now take theconverse case. Suppose it is clearly provedthat the defendant never desired or intendedthat his words should be published to anvthird person, and yet somehow they are


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I PUBLICATION 29published, will an action lie ? Yes ; if suchpublication occurred through any act or faultof the defendant, he will be liable. If by hisconduct he has in fact injured the plaintiff'sreputation, though inadvertently, he must paydamages. The absence of any wicked intentmay diminish the amount of such damages,but it does not affect the plaintiff's cause ofaction. If you accidentally or unintentionallypubbsh to a third person words defamatory ofme, I shall succeed in an action against you,unless you can satisfy the jury that you wereguilty of no negligence, and were not at all toblame in the matter.

Suppose the defendant wrote two letters,one to A and one to B, and the letter to Awas an angry and libellous letter. The de-fendant meant to send A's letter direct to A,but he unfortunately put it into the envelopewhich he had addressed to B, and sent to B theletter which he had intended for A. Is thisa publication by the defendant to B of a libelon A ? Clearly it is, for it was through thenegligence of the defendant that the libel waspublished to B.

If I write a libel and leave it about on thetop of the desk in my study, so that it will


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30 THE LAW OF LIBEL icatch the eye of any chance visitor ; and avisitor is shown into the room in my absence,and he sees the libel there and reads it, thatwould, I think, be a publication of the libelby me to that visitor. I am to blame forleaving such a document about.

The sale of every written or printed copyof a libel is prima facie an actionable publi-cation. But if the defendant is a newsvendor,who neither wrote nor printed the libel butmerely sold the newspaper containing it inthe ordinary way of his business, and whoneither knew nor ought to have known thatthat newspaper did contain, or was likely tocontain, any libellous matter, he will not bedeemed to have published the libel which hethus innocently disseminated (Emmens v.Pottle, 1885, 16 Q.B.D. 354).

If the defendant wrote a libellous letterand placed it in an envelope properly ad-dressed to the person libelled, and fastened itdown and sent it to him by a messenger ; ifthat messenger wrongfully broke open theenvelope and read the libel, that would be nopublication by the defendant to the messenger.For the only publication there was solelycaused by the wrongful act of the messenger,


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i PUBLICATIOH 31and the defendant was guilty of no negligencein the matter.

But suppose the defendant, after he wrotethe letter, put it in an envelope, and addressedthat envelope to the plaintiff, but did notfasten it down, and then gave it to a clerk toconvey to the plaintiff. Suppose the wickedclerk on the road, finding that the envelopewas not gummed down, took the letter outand read it, would that be a publication by thedefendant to his clerk ?

Well, I think it would be. Of course theclerk is to blame for reading a private letter.But is not the defendant still more to blamefor not properly fastening up the letter ? Ithink that is a publication by the defendantto his clerk.

Of" course the defendant is only liable forhis own acts and those of his servants oragents. He will not be responsible for anypublication which is caused solely by the in-dependent act of some third person. But ifthe defendant had any share in the matter,or by any act or conduct contributed to causethe publication, he will be liable. Take thecase suggested by Lord Esher in Pullman v.Hill and Company, 1891, 1 Q.B. at p. 527 :


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32 THE LAW OF LIBEL I" If the writer of a letter locks it up in his owndesk, and a thief comes and breaks open thedesk and takes away the letter and makes itscontents known, I should say that would notbe a publication " by the writer.

I had a case about three years ago, whichillustrates the same principle. The circum-stances were unusual. The defendant hadmade up his mind to murder A and then toshoot himself; he wrote a libellous paper,stating his reasons for committing the crime,which he hoped would be found on his deadbody and published to all the world. He shotat A and wounded him, but was arrested beforehe could shoot himself. He was taken to thepolice-station and searched, and the paper wasfound on him by a sergeant of police, whosubsequently read it aloud at the trial toprove that the crime was committed deliber-ately. It was copied into many newspapers.Mathew, J., expressed the opinion that therewas no publication by the defendant ; thesergeant was not his agent.

In an American case the plaintiff, after re-ceiving a libellous letter from the defendant,properly addressed to himself and properlysealed, sent for a friend of his and also for the


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I PUBLICATION 33defendant ; he then, in their presence, re-peated the contents of the letter, and askedthe defendant if he wrote that letter; thedefendant, in the presence of the plaintiff'sfriend, admitted that he had written it. Itwas held that this was no publication by thedefendant to the plaintiff's friend. It wasthe plaintiff's own act.

And this suggests to me a case of greaterdifficulty. Suppose that the defendant is aGerman merchant, and that the plaintiff isa German too, a clerk in the office of an.English merchant. The defendant considersthat he has some cause of complaint againstthe plaintiff, so he writes a letter in Ger-man to the employer of the plaintiff. Theenvelope is properly fastened down and ad-dressed to the English merchant, who opensit himself; he sees that it is in German, so hecalls for his German clerk, the plaintiff, andhands it to him, saying, " Tell me what this isabout." Thereupon it becomes the duty ofthe plaintiff to translate this German letter tohis employer, and in so doing he, the plaintiff,necessarily publishes to his- employer a libelon himself. Can it be said that this is a pub-lication by the defendant ? Can the plaintiff

D


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34 THE LAW OF LIBEL Ibe the agent of the defendant to create acause of action against his principal ? Hereyou see the defendant has acted in such away as to make it the duty of the plaintiff topublish this libel to the English merchant.He did, in fact, compel the plaintiff to injurehis own reputation, and it seems hard there-fore that he should escape liability. On theother hand, it is difficult to hold in any casethat the plaintiff can be the agent of thedefendant to create for himself a cause of.action against his principal. The case is onthe border line ; and when it arises I shall behappy to argue it in the Court of Appeal oneither side.

But in the meantime the general principleis clear, that in order to succeed in an actionof libel the plaintiff must prove an actualpublication by the defendant to some thirdperson of written or printed words whichhave injured the reputation of the plaintiff.As soon as the plaintiff proves that, he hasestablished a prima facie case.


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II

FAIR COMMENT ON A MATTER OFPUBLIC INTEREST

In my last lecture I dealt with the plaintiff'sprimafacie case. We agreed that the plaintiffwould establish a cause of action, if he satis-fied the jury that the defendant had publishedto some person other than himself written orprinted words which had injured his reputa-tion. It is the right of the plaintiff, and ofevery citizen, to have his good name main-tained unimpaired. And this right is what iscalled by academical professors (who love atag of Latin) a jus in rem. They mean by thisphrase, a right absolute, good against all theworld, a right which no one may infringe with-out rendering himself liable to an action. Theplaintiff in such an action need prove neitherdamage nor malice; 1 for no man may dis-

1 See post, p. 110.


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36 THE LAW OF LIBEL nparage or destroy the reputation of anotherto do so without more is an actionable tort.

But, on the other hand, the defendant hashis rights too. He is an English citizen asmuch as the plaintiff. And one of his rightsas an English citizen is to speak his mindfully and freely on all matters which concernthe State, or which concern himself as acitizen of the State. In this free countryevery citizen has a right publicly to discussall matters of public interest, to canvass anygrievance, and to criticise, even with severity,the public acts of any public man. And inexercising this right it will go hard if he donot say something derogatory to the reputa-tion of those whose public conduct he criticisesor attacks.

So here you have a conflict of rights. Theplaintiff's reputation must not be injured ; thedefendant's freedom of speech must not berestricted. Which is to yield to the other, iftheir rights must necessarily clash ?

The plaintiff must give way. For he it isthat complains and calls in the aid of the lawand he must show good ground for the inter-ference of the State. His bringing an acjielhmeans that he is seeking compensatrixm~for an


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" FAIR COMMENT 37injury done to him by an alleged wrongfulact of the defendant. If the act of which hecomplains is not wrongful but legitimate, heshall recover no damages. In other words, afair comment on a matter of public interest isnot an actionable libel at all.

But, on the other hand, the law guardsjealously the reputation of every oneeven ofa politician ; and whenever your act, thoughlawful, is likely to injure your neighbour, youmust be very careful that it does him as littleinjury as possible. If indeed you can exerciseyour right without injuring him at all, thenyou must not injure him at all. Hence, if adefendant, when exercising his undoubtedright to criticise and comment on the public actsof a public man, should overstep the line andunnecessarily impute dishonourable motives, ormaliciously pry into his private concerns, thelaw is keen to resent this as a malicious libelmasquerading in the guise of a fair comment.

The right of criticism or fair comment, then,is zealously guarded ; and the defendant willonly be relieved from liability so long as hecarefully keeps within proper bounds.

In some of the reported decisions of ourCourts, the fact that the words complained of


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38 THE LAW OF LIBEL Hwere a fair comment on a matter of publicinterest has been treated as though it createdwhat is technically known as a privilegedoccasion. There are certain occasions onwhich it becomes a man's duty to speak outhis mind fully and freely, and to state what-ever he honestly believes to be the truth.This is so, for instance, if he is a witness inthe box, sworn to tell the truth, the wholetruth, and nothing but the truth. Or takethe ordinary case of a master who is asked togive a character to his former servant ; whenthat happens, it is the duty of the formermaster to state what he knows about thatservant for the benefit of the person who isapplying for his character ; and if he states nomore than he honestly believes to be true, hewill not be liable to an action, even thoughwhat he writes should ultimately prove to beuntrue. This is because the occasion is privi-leged. But quite a different rule prevailswhen the defence of "fair comment" is pleaded.The writer may honestly believe that everyword which he has written is perfectly truebut that is quite immaterial, if the jury shoulddeem his comments unfair. This was mostclearly laid down in the case of Campbell v.


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ii FAIR COMMENT 39Spottiswoode, 1863, 3 B. & S. 769; 32L.J. Q.B. 185, an action brought by the Eev.Dr. Campbell against the Saturday Reviewfor an article written in what is known as " theSaturday's good old style."

Dr. Campbell was the editor of a newspapercalled the British Ensign, a religious paper,in which he strenuously advocated the neces-sity of England taking more active measuresto convert the Chinese to Christianity. Manyworthy people who subscribed to this papertook large numbers of extra copies for distri-bution, and Dr. Campbell not unnaturallypubhshed the names and addresses of the sub-scribers who thus so generously supported him.But in the number of the Saturday Reviewfor 14th June 1862 there appeared an article,and a very cleverly written article, headed" The Heathen's Best Friend." You will findit set out in full in the Reports ; but I willgive you a few extracts :

"Among the many blessings that we have to bethankful for in this life, that highly refreshing andinvigorating newspaper, the British Ensign, ought notto be lost sight of. People don't value it so highlyas they ought to do, nor are they yet fully aware ofthe inestimable advantages it has been the means ofconferring on mankind. It has, according to Dr.


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40 THE LAW OF LIBEL nCampbell (than whom no man should be better quali-fied to judge), half rooted out infidelity from the land.It has struck a deadly blow at the Papacy. It hasawakened the Churches, stirred up the backsliders,reproved vice in high places, comforted Christians inall parts of the world, and made the common enemyof mankind quake with apprehension, and all at theexceedingly low charge of one penny ! It seems anexcess of generosity to set so low a price on so in-valuable an instrument ; but Dr. Campbell assures usthat he does not look for his reward in the BritishEnsign office, or anywhere there adjacent. ... Toenjoy the Ensign one must be brought up to it. Onemust be trained to browse on the evergreen pastureswhich stretch before us in that Elysium. Few havehad the benefit of such an education. . . . Fortunately,when he (Dr. Campbell) is in a dilemma, a Mr. Thomp-son, of Bath, is ever at hand to help him out."The Doctor refers frequently to Mr. Thompsonas his authorityso frequently, that we must own tohaving had a transitory suspicion that Mr. T. wasnothing more than another Mrs. Harris, and to be-lieve, with Mrs. Gamp's acquaintance, that ' therenever was no such person.' But as Mr. Thompson'sname is down for 5000 copies of the Ensign, we mustaccept his identity as fully proved, and we hope thepublisher of the Ensign is equally satisfied on thepoint.

" To buy up the Ensign is represented as a Christianduty. Subscribe to the paper, not because it is worth .anything, but from love to the heathen.

"There have been many dodges tried to make alosing paper ' go,' but it remained for a leader in theNonconformist body to represent the weekly subscrip-tion as an act of religious duty."


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n FAIR COMMENT 41Now this is all very amusing, but it is

probably all untrue. Certainly the insinuationabout Mr. Thompson is quite unfounded. Ihad the honour of knowing that worthy gentle-man when I was a boy at Bath, and he wasjust the sort of person who would subscribefor a thousand copies of any paper of anevangelical type, if he thought that any goodwould result to the Chinese or any one else. vAt the trial the jury was satisfied that thestrictures on Dr. Campbell were undeserved,and found a verdict for the plaintiff for 50damages. But they added an express rider totheir verdict to this effect : That the writer ofthe article in the Saturday Review did believethe imputations in it to be well founded. TheCourt held this finding to be immaterial. Thewords exceeded the limits of a fair comment,and whether the writer believed them or notdid not matter, except in reduction of dam-ages. The words were libellous, and theplaintiff recovered his 50. It follows fromthis decision that the bona fides of the writeris immaterial whenever the comment is un-fair. And it has now been expressly decidedin the case of Merivale and Wife v. Carson,which I will deal with presently, that a fair


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ir CRITICISM 43But the criticism must be criticism, and

not defamation. True criticism differs fromdefamation in three particulars :

(1) Criticism deals only with such things asinvite public attention, or call for public com-ment. It does not follow a public man intohis private life, or pry into his domesticconcerns.

(2) Criticism never attacks the individual,but only his work. A true critic never indulgesin personalities, or recklessly imputes dishonour-able motives, but confines himself to the meritsof the subject-matter before him.

(3) The critic never takes advantage of theoccasion to gratify private malice, or to attainany other object beyond the fair discussion ofmatters of public interest, and the judiciousguidance of the public taste. He will carefullyexamine the production before him, and thenhonestly and fearlessly state his true opinionof it.

To illustrate these distinctions, I will referyou to a case which was decided at the beginningof the century, as early as 1808. It was anaction brought against Thomas Hood, the fatherof the poet, by a gentleman called Sir JohnCarr, who had written a book in 1805 called


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44 THE LAW OF LIBEL nThe Stranger in Ireland, of which Mr. Hoodmade great fun in his Pocket-book, callingit "A Ryghte Merrie and conceited Tour";and Sir John brought his action. His declara-tionthat was the name in those days for whatwe now call a Statement of Claimis set outin full on page 355 of the first volume of Camp-bell's Reports. It enumerates the other bookswhich Sir John had written, the copyrights ofwhich he had sold for " divers large sums ofmoney," and then continues

" Which said books had been respectively publishedin quarto, yet the defendant, intending to expose himto, and to bring upon him, great contempt, laughter, andridicule, falsely and maliciously published a certain false,scandalous, malicious, and defamatory libel, in the formof a book, of and concerning the said Sir John and of andconcerning the said books, of which the said Sir John wasthe author as aforesaid, and which same libel containedtherein a certain false, scandalous, malicious, anddefamatory print, of and concerning the said Sir John,and of and concerning the said books of the said SirJohn 1st and 2ndly above mentioned, therein called'Frontispiece'; and entitled, 'The Knight (meaning thesaid Sir John) leaving Ireland with Eegret,' and con-taining and representing in the said print a certainfalse, scandalous, and malicious, defamatory, andridiculous representation of the said Sir John, in theform of a man of ludicrous and ridiculous appearance,holding a pocket handkerchief to his face, and appearingto be weeping, and also containing therein a certain


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ii CRITICISM 45false, malicious, and ridiculous representation of a manof ludicrous and ridiculous appearance, following thesaid representation of the said Sir John, and loadedwith, and bending under the weight of, three largebooks, one of them having the word ' Baltic ' printedon the back thereof, etc., and a pocket handkerchiefappearing to be held in one of the hands of the saidrepresentation of a man, and the corners thereofappearing to be held or tied together, as if containingsomething therein, with the printed word ' Wardrobedepending therefrom (thereby falsely, scandalously,and maliciously, meaning and intending to represent,for the purpose of rendering the said Sir John ridiculous,and exposing him to laughter, ridicule, and contempt,that one copy of the said first-mentioned book of the saidSir John, and two copies of the said book of the saidSir John secondly above mentipned, were so heavy asto cause a man to bend under the weight thereof, andthat his the said Sir John's wardrobe was very small, andcapable of being contained in a pocket handkerchief."

The declaration concluded by laying asspecial damage," That the said Sir John had been prevented andhindered from selling to Sir Eichard Philips, Knight,for a large sum of money, to wit, 600, the copyrightof a certain book or work of him the said Sir John, ofwhich the said Sir John was the author, containing anaccount of a tour of him the said Sir John through partof Scotland, which, but for the publishing of the saidfalse, scandalous, malicious, and defamatory libels, hethe said Sir John would, could, and might have sold tothe said Sir Eichard Philips for the said last-mentionedsum of money, and the same remained wholly unsold


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46 THE LAW OF LIBEL nand undisposed of, and was greatly depreciated andlessened in value to the said Sir John."

To this long-winded declaration, the defend-ant pleaded one short and simple plea, NotGuilty. The trial had not proceeded far beforeLord Ellenborough, C.J., intimated his clearopinion that if the book published by thedefendant only ridiculed the plaintiff as anauthor, the action could not be maintained. Iwill quote you his words :

" Here the supposed libel has only attacked thoseworks of which Sir John Carr is the avowed authorand one writer in exposing the follies and errors ofanother may make use of ridicule, however poignant.Ridicule is often the fittest weapon that can be employedfor such a purpose. If the reputation or pecuniaryinterests of the person ridiculed suffer, it is damnumabsque injuria. Where is the liberty of the press, if anaction can be maintained on such principles ? Perhapsthe plaintiff's Tour through Scotland is now unsale-able ; but is he to be indemnified by receiving acompensation in damages from the person who mayhave opened the eyes of the public to the bad taste andinanity of his compositions ? Who would have boughtthe works of Sir Robert Filmer after he had beenrefuted by Mr. Locke ? But shall it be said that hemight have sustained an action for defamation againstthat great philosopher, who was labouring to enlightenand ameliorate mankind 1 We really must not crampobservations upon authors and their works. Theyshould be liable to criticism, to exposure, and even to


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ii CRITICISM 47ridicule, if their compositions be ridiculous ; otherwise,the first who writes a book on any subject will maintaina monopoly of sentiment and opinion respecting it.This would tend to the perpetuity of error. Reflectionon personal character is another thing. Show me anattack on the moral character of this plaintiff, or anyattack upon his character unconnected with his author-ship, and I shall be as ready as any judge who ever sathere to protect him ; but I cannot hear of malice onaccount of turning his works into ridicule."

The counsel for the plaintiff still complain-ing of the unfairness of this publication, andparticularly of the print affixed to it, the trialproceeded. After the Attorney- General hadaddressed the jury on behalf of the defendant,Lord Ellenborough said

" Every man who publishes a book commits himselfto the judgment of the public, and any one maycomment upon his performance. If the commentatordoes not step aside from the work, or introduce fictionfor the purpose of condemnation, he exercises a fairand legitimate right. In the present case, had theparty writing the criticism followed the plaintiff intodomestic life for the purposes of slander, that wouldhave been libellous ; but no passage of this sort hasbeen produced, and even the caricature does not affectthe plaintiff, except as the author of the book which isridiculed. The works of this gentleman may be, foraught I know, very valuable ; but whatever theirmerits, others have a right to pass their judgmentupon themto censure them, if they be censurable,and to turn them into ridicule, if they be ridiculous.


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48 THE LAW OF LIBEL nThe critic does a great service to the public, who writesdown any vapid or useless publication such as oughtnever to have appeared. He checks the disseminationof bad taste and prevents people from wasting boththeir time and money upon trash. I speak of fair andcandid criticism ; and this every one has a right topublish, although the author may suffer a loss from it.Such a loss the law does not consider as an injurybecause it is a loss which the party ought to sustain.It is, in short, the loss of fame and profits to which hewas never entitled. Nothing can be conceived morethreatening to the liberty of the press than the species ofaction before the Court. We ought to resist an attemptagainst free and liberal criticism at the threshold."

The Chief Justice concluded by directingthe jury,"That if the writer of the publication complainedof had not travelled out of the work he criticised "for the purpose of slander, the action would not liebut if they could discover in it anything personallyslanderous against the plaintiff, unconnected with theworks he had given to the public, in that case he hada good cause of action, and they would award himdamages accordingly."

The case- ended in a verdict for the de-fendant.

Again, take the two actions of Straussv. Francis (4 F. & F. 939 and 1107). TheAthenaeum published a critique on a novelwritten by the plaintiff, describing it as " thevery worst attempt at a novel that has ever


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50 THE LAW OF LIBEL nment of fact about him as an author {e.g.that he was the writer of some other book orplay notorious for its immoral tone), he couldnot claim any protection for this as fair com-ment if it proved to be untrue. For it is notcomment on anything ; it is a false assertion,not an expression of opinion at all ; it is anordinary unprivileged libel, and can only bejustified by strict proof of its truth. If, onthe other hand, a critic makes any misstate-ment of fact about the book or play he isreviewing, it will be for the jury to considerwhether this does or does not render thecriticism unfair, unless it is obviously an im-material slip about a mere detail. A slightunintentional error, which would not affectthe reader's opinion of the book or play,would clearly be no ground for imputingunfairness. But a misstatement which con-veyed an entirely false impression as to thewhole motive of the book or play would beclearly unfair.

I will give you an example of this. Mr.and Mrs. Herman Merivale wrote a play calledThe Whiphand, the plot of which turnedentirely on gambling. The giddy young wifeof an elderly baronet is inveigled by a foreign


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ii CRITICISM 51adventurer into constant vingt-et-un, till sheloses 5000, which she cannot pay. All thisis a secret from her husband, whose duties asan M.P. compel him to spend his evenings inthe House of Commons. The foreigner, hav-ing thus " the whiphand " of Lady Felton,induces her to assist in inveigling others toplay, and finally to connive at his cheating.There is not one word in the piece to whichthe most squeamish moralist could object onthe ground of its indelicacy. The defendantpublished a criticism on this play, commencingthus :

"The TVhiphand, the joint - production of Mr. andMrs. Herman Merivale, gives us nothing but a hash-upof ingredients which have been used ad nauseam, untilone rises in protestation against the loving, confiding,fatuous husband with the naughty wife and her doubleexistence, the good male genius, the limp aristocrat,and the villainous foreigner."The case came on for trial before Mr. JusticeField on 3rd and 4th March 1887. Theplaintiffs alleged that the word " naughtywas here used in a slang sense ; and, takenin connection with "wife" and "fatuous hus-band," would convey to any one who read thereview, but who had not seen the play, that


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n FAIR COMMENT 53within certain limits. We may sum them up,thus : In order to relieve the defendant fromliability,

(a) The words which he published must befairly relevant to some matter of public in-terest.

(b) They must be the expression of anopinion, and not the assertion of a fact.(c) They must not exceed the limits of afair comment.

(d) They must not be published maliciously.I will deal with each of these heads separ-

ately.(a) First, what are the matters of public

interest on which every one has a right tocomment ? This is a question for the judge,and not the jury (per.Lopes, L.J., 1894, 1Q.B. at p. 143). But as a rule there is notmuch difficulty about it. The public conductof every public man is clearly a matter ofpublic concern ; so is the conduct of everypublic body, and the management of everypublic institution. Every man has a perfectright to express freely his honest opinion onall matters of general concern, such as thepolicy of the Government, all Government ap-pointments, our relations with foreign coun-


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n FAIR COMMENT 55private life. He ought never to pry intothe private affairs of any individual, howeverfamous or notorious. It may be that thepublic would be interested in such detailsbut it does not follow that the matter is oneof general public interest within the meaningof the rule. A newspaper, in particular, whichis addressed to the public generally, shoulddeal only with matters which are of generalpublic interest in the locality in which thatnewspaper circulates.

It is not always easy to draw the line, how-ever, between matters which the law deems ofpublic interest, and those which it does not.Take the case of Kelly v. Tinling, L.E. 1Q.B. 699, for instance. There, the LiverpoolDaily Courier, without asking the plaintiff'spermission, published a correspondence whichhad passed between the plaintiff, who was theincumbent of St. George's Church, Liverpool,and one of his churchwardens. One of theletters written by the churchwarden containedthe following passage :

"I have observed with pain the church turned intoa bookseller's shop during divine service by yourerrand-boy selling books under the pulpit, and moneybeing jingled about in giving change, to the annoyance


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56 THE LAW OF LIBEL nof many of the congregation. Nor can I omit to alludeto the desecration of the church by turning a portionof it into a cooking apartment, and endangering thesacred edifice, which I am bound to protect. ... Asyou make use of St. George's Church for a number ofpurposes for which it was never intended, it becomesmy painful duty to request that these improprietiesmay cease."

It was proved at the trial that the plaintiff'sservant had been in the habit of selling hymn-books and receiving the money for them inthe church, though the plaintiff had put astop to this as soon as he heard of it. It wasalso proved that the plaintiff had had a potato,if not also a chop, cooked in the vestry betweentwo services, because there was not time forhim to go home to dinner. The learned judgereferred the jury to some observations whichhe had made on the preceding day in anotheraction brought by the same plaintiff againstthe Liverpool Mail for some other libels (forwhich he recovered one farthing damagesKelly v. Sherlock, L.E. 1 Q.B. 686, 689).These observations were as follows :

"The first question you have to decide is whetherthe publications were libels according to the law's defi-nition of a libel. Anything which is calculated tobring a person into ridicule, hatred, or contempt is alibel. Although that is true as a general rule, yet it


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ii FAIR COMMENT 59who has considered the matter, and formed anopinion about it which he states for the benefitof others. These are clearly quite distinct andseparate things, and should be kept apart inthe paper. As Lord Campbell once remarked," If any comments are made, they should notbe made as part of the report. The reportshould be confined to what takes place inCourt, and the two things, report and com-ment, should be kept separate."

This distinction runs through the wholelaw on the subject. Different legal principlesapply to the two kinds of composition ; forwhereas fair reports are (as a rule) privileged,fair comments, if on matters of public interest,are not libels at all. So again, where a triallasts more than one day, daily reports of theproceedings may be published, but no com-ments may be made on the case till the trialis at an end. *

(b) Next, the words complained of mustbe the expression of an opinion and not theassertion of a fact. If you state as a factthat a Government official or a candidate forParliament did a certain act which he neverdid, then the fact that if he had done it, suchconduct would have been a matter of' public


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60 THE LAW OF LIBEL iinterest, will not help you. You must proveyour words true, or pay damages. A news-paper actually has no right to publish lies,even of a public man ! Comment on well-known or admitted facts is a very differentthing from unsubstantiated assertions as tomatters of fact upon which you propose tocomment. Such assertions are not commentsupon anything. They are not comments atall. This distinction was very clearly pointedout by the Irish Exchequer Division in thecase of Lefroy v. Burnside, 4 L.E.Ir. at p.565.

"That a fair and bona fide comment on a matter ofpublic interest is an excuse of what would otherwisebe a defamatory publication is admitted. The verystatement, however, of this rule assumes the mattersof fact commented upon to be somehow or other ascer-tained. It does not mean that a man may invent facts,and comment on the facts so invented in what wouldbe a fair and bona fide manner on the supposition thatthe facts were true. . . If the facts as a commentupon which the publication is sought to be excused donot exist, the foundation of the plea fails."

An illustration comes from the CapeDavis and Sons v. Shepstone, 11 App. Cas.187. There the appellants were the ownersof a 'daily newspaper called Hie Natal


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II FAIR COMMENT 61Wit,t'.K.s, iu which they constantly attackedthe official conduct of the respondent, theBritish Resident Commissioner in Zululand.In particular, they asserted that he had him-self violently assaulted a Zulu chief; thathe had set on his native police to assaultand ahuse other Zulu chieftains, etc. Theyvouched for the truth of these stories, de-claring that, though some doubt had beenthrown on them, they would prove to be trueon investigation. Then they proceeded, onthe assumption that the charges were true, tocomment on the respondent's conduct in mostoffensive and injurious language. At the trialin Xatal, on 4th September 1883, it wasproved that the charges against the re-spondent were absolutely without founda-tion. The appellant made no attempt tosupport them by evidence. The jury founda verdict for the plaintiff for 500 damages,and a motion for a new trial was refused bythe Supreme Court of Natal. On appeal tothis country, the Judicial Committee of thePrivy Council held that such defamatorycharges were in no way privileged, that theywere not fair comment on anything, that thedamages were not excessive, and that no


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62 THE LAW OF LIBEL nground was shown for a new trial. LordHerschell, L.C., stated the distinction be-tween comment or criticism and allegations offact in very clear and forcible language :

" Comment on well-known or admitted facts is avery different thing from the assertion of unsubstan-tiated facts for comment. There is no doubt that thepublic acts of a public man may lawfully be made thesubject of fair comment or criticism not only by thepress, but by all members of the public. But the dis-tinction cannot be too clearly borne in mind betweencomment or criticism and allegations of fact, such asthat disgraceful acts have been committed, or discredit-able language used. It is one thing to comment uponor criticise, even with severity, the acknowledged orproved acts of a public man, and quite another toassert that he has been guilty of particular acts ofmisconduct."

But sometimes a phrase may appear toassert a fact when you take it by itself, andyet you will find, if you study its context,that it is really only a comment on someother facts, or an inference from them. If Isay you are " not straightforward," sim-pliciter, without more, that would be theassertion of a fact. But if I say that A askedyou a question, and you replied " Yes " to itthat the next day you were asked the samequestion by B, and told him " No " ; and then


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ii FAIR COMMENT 63I add that such conduct is not straightfor-ward, that last observation is a comment onthe preceding facts ; and if the preceding factshe correctly stated I need not prove my com-ment true, if facts and comment all relate toa matter of public interest. In other words,if I state a bare inference without the facts onwhich it is based, my inference will be treatedas an allegation of fact. But if I set out thefacts correctly, and then give my inference,making it clear that it is my inference fromthose facts, it will, as a rule, be deemed acomment. And there is common sense inthis. For if I set out the facts on whichmy opinion is based, my readers can judgefor themselves whether my opinion is wellfounded or not. They may see no harm atall in the conduct which I condemn. But ifI do not state the facts, or state them incor-rectly, then I do not enable you to form yourown opinion on the matter. If I make thebare statement that " A B is a swindler," or" a liar," then that is not an inference fromanything or a comment on anything. It isjust an allegation of fact which I must provetrue, or for which I must establish a privilege,if I am to escape paying damages to A B.


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64 THE LAW OF LIBEL n(c) Then the words must not exceed the

limits of a fair comment. As soon as thejudge has decided (and it appears that it is forhim and not the jury to decide this) that thematter commented on is one of public interest,the more difficult question arises, " Is the com-ment on it a fair one ? " This is a questionfor the jury, unless the comment is so clearlyfair and legitimate that there can be no ques-tion about it. How are they to answer it ?There is not to be found anywhere in ourlaw-books any definition of a fair commentthough there are a great many cases reportedin which the jury has found a particularcriticism unfair, and their finding has beenapproved by the Court. Possibly learnedjudges have thought it best not to formulateany definition, but to leave the jury to decideeach case on its own merits. " Nothing ismore important," as Mr. Justice Cromptonsaid in the case I dwelt on at the beginningof this lecture [Campbell v. Spottisivoode, 3Best and Smith, at p. 778), " than that fairand full latitude of discussion should beallowed to writers upon any public matter,whether it be the conduct of public men orthe proceedings in Courts of Justice, or in


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ii FAIR COMMENT 67all deliberate misrepresentation, and at thesame time as affording every reasonableprotection to that liberty of speech whichis essential to the honour and integrity ofthe press.

(d) Lastly, the defendant must not haveacted maliciously in the matter. The word" fair," in the phrase " a fair comment," refersto the language employed, and not to themind of the writer. Hence it is possible thata fair comment should yet be publishedmaliciously. Suppose, for instance, that Aand B are both suitors for the hand of thesame young lady. A writes a book or a playwhich is severely criticised in the Times. Thecriticism, though severe, is nevertheless a faircomment on the play. It honestly expresseswhat the critic on the staff of the Times reallythought of the production. B reads this, andis delighted, and he sends a copy of that issueof the Times to the mother of the young lady,hoping and intending thus to injure his rival.Will an action lie for this malicious publica-tion of what all the time is a fair comment ?I think it will, and there is some ground forthat opinion in the dictum of Lord Esher,M.K., in Merivale v. Carson, 20 Q.B.D. at p.


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68 THE LAW OF LIBEL n281, though the point is far from clear. Adagger may be a perfectly legitimate weaponto use in fair fight, but it does not follow thatyou are entitled to stab your foe in the backwith it.

But in the absence of any such expressmalice the defendant will be entitled to judg-ment in any action of libel, if he satisfies thejury that his words were fairly relevant tosome matter of public interest, and that theywere a fair comment on that matter, thehonest expression of his own opinion, and nota false statement as to some matter of fact.


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70 THE LAW OF LIBEL inis to bring him into ridicule, hatred, or con-tempt.

But before words can injure a man's reputa-tion, they must be understood. People willnot think worse of the plaintiff, if the defend-ant's words are unintelligible ; or if theirdefamatory meaning is so hidden that nothird person can detect it. It is not enoughthat the plaintiff perceives the meaning of thewords and feels their hidden sting. Somethird person must understand them, and under-stand them in a defamatory sense. For, as Itold you when we were dealing with publica-tion, a man's reputation is the esteem in whichothers hold him, not the good opinion whichhe has of himself. And unless his reputationbe injured, no action lies.Now it often happens that a person whodesires to injure the reputation of anotherhas not the courage to say out boldly all hemeans. He prefers to wrap it up, to drop ahint here and an insinuation there, and leavehis readers to draw their own conclusions.This requires less pluck in the libeller, andalso, as a rule, does more harm to the reputa-tion of the person attacked. For those towhom the words are published put the blackest


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in CONSTRUCTION 73though this was not what you intended. Andgenerally, if you say one thing and meananother, the law will seize on what you say,and disregard what you meant. Grown-upmen and women must learn to express them-selves properly.

Then, again, you must be very careful howyou make jokes before serious-minded persons.If you libel a man in jest, and your readerstake you in earnest, you jest at your peril.This was what Mr. Hayes discovered in 1831,in the Irish Court of Exchequer. He statedpublicly that Mr. Donoghue had been de-tected taking dead bodies out of the church-yard and had been fined for the offence. Andwhen Mr. Donoghue brought his action, Hayespleaded that he meant this as a joke. A verygruesome joke at the best ; he, could_not havebeen born in Ireland, I think ! But it did notappear that any of the bystanders understoodthat he was joking. And the Lord ChiefBaron said : " The principle is clear that aperson shall not be allowed to murder an-other's reputation in jest. But if the wordsbe so spoken that it is obvious to every by-stander that only a jest is meant, no injury isdone, and consequently no action would lie."


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74 THE LAW OF LIBEL inIt does not matter therefore what meaning

a writer intended to convey. It may be thatto his mind his language was harmless ; butif his readers reasonably attached to it aninjurious meaning, he is liable for the ambigu-ous phrase which he so injudiciously selected.In all these cases the only question is whatmeaning would the words convey to ordinaryEnglishmen who read them without anyprevious knowledge of the circumstances towhich they relate. And this of course is pre-eminently a question for the jury, who aretwelve ordinary Englishmen.

Many cases are reported in which a plain-tiff has recovered damages for words which,prima facie at all events, are innocent ormeaningless. There is an old case in whichthe Court solemnly decided that to say ofa merchant, " He hath eaten a spider," was" actionable with a proper averment of whatthe meaning is." This was decided in theyear 1636 (Franklyn v. Butler, Pasch. 11Car. I.). But the report does not vouchsafeany explanation of the meaning of this extra-ordinary phrase ; and I am unfortunately notsufficiently proficient in the slang of the daysof Charles I. to be able to throw any light on


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76 THE LAW OF LIBEL inwrote that all lawyers were thieves, no parti-cular lawyer could, sue him, unless there issomething to point to the particular in-dividual." Or take the instance suggested byLord Denman in Solomon v. Lawson (8 Q.B.837), " Suppose the words to be 'a murderwas committed in A's house last night,' nointroduction can warrant the innuendo ' mean-ing that B committed the said murder 'nor would it be helped by the finding ofthe jury for the plaintiff. For the Courtmust see that the words do not and cannotmean it, and would arrest the judgmentaccordingly."

In short, words will not be libellous unlessthey convey some definite imputation on somedefinite person, and that person must be theplaintiff in the action. If no one can tellwhat the words mean, there is no libel ; forno man's reputation has suffered. If no onecan tell to whom the words refer, there is nolibel on the plaintiff; for his reputation atany rate has not suffered.

Whenever it is not obvious from the wordsthemselves who is the person referred to orwhat is the imputation cast upon him, thedifficulty may be got over to some extent by


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in INNUENDO 77the plaintiff's inserting in his pleading anaverment, which is called an innuendo, stat-ing what he understands the words to mean.Thus, he would plead that he (the plaintiff)was a stockbroker, and that " the defendantfalsely and maliciously wrote and publishedof him the words ' He (meaning the plaintiff)is a lame duck,' meaning thereby that theplaintiff had not fulfilled his contracts inrespect of certain stocks and shares which hehad bought in the course of his business asa stockbroker." So, too, in the case of the" daffodowndilly," the pleading in fact ran," ' Thou (meaning thereby the plaintiff) art adaffodowndilly,' meaning thereby that theplaintiff was an ambidexter," a phrase which,though now almost as incomprehensible as theword which it sought to explain, was in thosedays a term generally known to the law. So,had there been a proper averment in thepleading to explain what meaning the word"bunter" conveyed in the year 1858, Mrs.Rawlings might have won her action ; forwith an innuendo evidence of the meaning ofthat strange word would have been admissible.Hence, whenever the words are prima facieharmless or prima facie meaningless, if you


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78 THE LAW OF LIBEL inare counsel for the plaintiff you must be sureand plead an innuendo in your Statement ofClaim.

But the innuendo must be a reasonableone ; it must be in accordance with the facts,and not an invention of an imaginative at-torney's clerk. The innuendo can only beused to evolve the true though latent mean-ing of the defendant's words, to make clear tothe Court and the jury what was in fact inthe defendant's mind. It must not be toofar-fetched. I found an instance of a verywild innuendo in the law reports of Massa-chusetts. The words were : " I was speakingto a lady about Mrs. York's case " : and theinnuendo was " meaning thereby that theplaintiff (Mrs. York) had been guilty ofadultery ! " That innuendo was disallowed.It is always for the judge to determine whetherthe words used are capable of the meaningwhich is alleged in the innuendo ; it is for thejury to determine whether the words didin fact convey that meaning to those whoread them. If the judge thinks the words areincapable of that meaning he will stop thecase; as was done in Mulligan v. Cole, 1875,L.E. 10 Q.B. 549. In that case the plaintiff


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111 CONSTRUCTION 81volumes of Lord Coke's, which are styled parexcellence "Eeports."

In those days there was much talk about" certainty "that is, precision, in pleading.And they were veryfond of a legal maxim whichstill holds good : Id certum est quod certumreddi potest. Still, if the defendant's meaningcould not be discovered for certain from hiswords and acts, or from the su

36613353 outline of the law of libel

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