findings of the jury, the entry of the judgment for the plaintiff is
right. I am of opinion that it was rightly entered for the plaintiff.
The principle which governs this case is plain. It is like that which
governs most other cases of privilege. In order, in cases of libel, to
establish that the communication is privileged, two elements must exist:
not only must the occasion create the privilege, but the occasion must
be made use of _bona fide_ and without malice; if either of these is
absent, the privilege does not attach; here the second element is
absent, for _bona fides_ is wanting, and malice exists. There are
certain cases in which the privilege is absolute. Words spoken in the
course of a legal proceeding by a witness or by counsel, and words used
in an affidavit in the course of a legal proceeding, are absolutely
privileged. It is considered advantageous for the public interests that
such persons should not in any way be fettered in their statements. This
is the first time that a report of proceedings in a court of justice has
been sought to be brought within this same class of privilege. I am not
disposed to extend the bounds of privilege beyond the principles already
laid down, and I find no authority for its extension.
_Judgment affirmed._[506]
CLARK _v._ MOLYNEUX
IN THE COURT OF APPEAL, DECEMBER 4, 1877.
_Reported in 47 Law Journal Reports, Common Law, 230._[507]
The action was for slander and libel. The plaintiff, a clergyman of the
Church of England, had been formerly in the army, but left it in the
year 1863; and, after taking his degree at Cambridge, was ordained by
the Bishop of Exeter, and subsequently became curate at Assington, to
the Rev. H. L. Maud.
In March, 1876, the defendant, the Rev. Canon Molyneux, the Rector of
Sudbury, which is in the neighborhood of Assington, when calling on a
Mr. G. Bevan, a banker, with whom he had been intimate for twenty-four
years, was informed by Mr. Bevan that the plaintiff was going to preach
one of a course of Lenten sermons at Newton Church, in the neighborhood,
and that he was sure that if Mr. Charles Smith, the rector, knew what
sort of a person the plaintiff was, he would never permit him to preach
in his church. Mr. Bevan then desired the defendant, as an old friend of
Mr. Smith’s, to let him know what the plaintiff’s character was. In
answer to the defendant’s inquiry as to what was the nature of the
charges against the plaintiff, Mr. Bevan said that he had been obliged
to leave the army through cheating with cards, had lived an irregular
life at Cambridge, had been guilty of gross immorality when curate at
Horringer, and had boasted of it. The defendant, placing implicit
reliance on Mr. Bevan, and thinking that it was his duty to acquaint Mr.
Charles Smith with the matter, at once rode to his house, and, finding
that he was ill in bed, communicated his information to the Rev. H.
Smith, his son, who was in the house.
At the end of the same month the defendant consulted the Rev. J. C.
Martyn, his rural dean, as to whether he should not speak to Mr. Maud,
the plaintiff’s rector. Mr. Martyn said he thought the defendant ought
to do so. As Mr. Maud was abroad, the defendant spoke to his solicitor
on the subject; and on Mr. Maud’s return he received a letter from him,
asking for information. The defendant wrote an answer detailing the
facts substantially as communicated to him by Mr. Bevan; but some of the
expressions in the letter were stronger than those used by Mr. Bevan.
“Profligate” was used instead of “irregular,” and “expelled the army,”
instead of “obliged to leave the army.”
The defendant also consulted Mr. Green, his curate, who was announced to
preach one of the same course of sermons as the plaintiff. Mr. Green had
been with the plaintiff for twenty years, and was consulted by him on
every ecclesiastical matter that came before him.
The communications made to Mr. Green, Mr. H. Smith and Mr. Martyn were
the slanders complained of, and the letter to Mr. Maud was the libel.
The defendant relied solely on the privilege of the occasions and the
_bona fides_ of his statements.
The action was tried before Baron Huddleston and a special jury at Bury
St. Edmunds, at the Summer Assizes, 1876.
The learned judge ruled that all the occasions were privileged, and the
case went to the jury on the question of express malice.
In the course of his summing up the learned judge said: “Now in law if a
man says what is not true, or writes what is libellous, or says what is
slanderous of another, it is presumed that it is malicious. But where
the occasion is privileged, then you require something more, and you
require what the law calls express malice. I must tell you what express
malice means.”
And again, at the close of the summing up:—
“What you have to consider, then, is really and substantially
this—assuming that these occasions were privileged, do you think that
the defendant made those statements and wrote that letter _bona fide_,
and in the honest belief that they were true—not merely that he believed
them himself, but honestly believed them, which means that he had good
grounds for believing them to be true. I do not mean to say
pig-headedly, pertinaciously and obstinately perhaps persuaded himself
of the matter for which he had no reasonable grounds, and of which you
twelve gentlemen would say they were perfectly unjustified. If you think
that under these circumstances Mr. Molyneux has taken himself out of the
privilege in consequence of the statements not being made _bona fide_
and in the honest belief they were true, and that therefore there is
what in law is called malice in fact, which I have explained to you,
then your verdict will be for the plaintiff.”[508]
The jury found a verdict for the plaintiff, with £200 damages.
These passages and the general tenor of the summing up, which was to the
same effect, constituted the misdirection complained of.
The defendant moved for a new trial in the Queen’s Bench Division, on
the ground of misdirection, and that the verdict was against evidence;
but the court refused the rule. The defendant appealed.
BRETT, L. J. I am of the same opinion; I think that there was, what
amounts in law to a misdirection; that the verdict was against the
evidence; and, further, that there was no evidence to go to the jury.
With regard to the alleged misdirection, I do not think that we differ
from the Queen’s Bench Division in our view of the law, but I think
that, whatever the idea Baron Huddleston intended to convey to the jury
in his careful, elaborate, and, if I may say so, able summing up, really
was, it may have materially misled them, and if it may, that is in law a
misdirection.
The summing up is founded on the assumption that the occasions of the
alleged slanders and libel were privileged, and that the defendant was
therefore excused in that which would otherwise have been actionable, if
he used the occasions fairly. Now it is right before criticising the
summing up of the learned judge to state, as clearly as one can, what
the law relating to excuse by reason of privilege in cases of libel and
slander really is. It is, I apprehend, this: When a defendant claims
that the occasion of a libel or slander is privileged, and when it is
held by the judge, whose duty it is to decide the matter, that the
occasion is privileged, the question arises,—under what conditions can
the defendant take advantage of the privilege? If the occasion is
privileged, it is so for some reason, and the defendant is entitled to
the protection of the privilege if he uses the occasion for that reason,
but not otherwise. If he uses the occasion for an indirect reason or
motive, he uses it, not for the reason which makes it privileged, but
for another. One, but by no means the only, indirect motive which can be
alleged, is the gratification of some anger or malice of his own. By
malice here I mean, not a pleading expression, but actual malice, or
what is termed malice in fact, _i. e._, a wrong feeling in the
defendant’s mind. If this malice be the indirect and wrong motive
suggested in a particular case, there are certain tests by which its
existence may be investigated. Two such tests are these: If a man is
proved to have stated what he knew to be false, no one inquires further,
everybody assumes thenceforth that he was malicious, that he did so
wrong a thing from some wrong motive. Again, if it be proved that out of
anger or from some other wrong motive the defendant has stated something
as a truth or as true, without knowing or inquiring whether it was true
or not, therefore reckless, by reason of his anger or other motive,
whether it is true or not, the jury may infer, and generally will infer,
that he used the occasion for the gratification of his anger or malice,
or other indirect motive, and not for the reason or motive which
occasions or justifies the privilege.
These tests have been suggested before, and they were approved by the
whole Court of Common Pleas in a case tried before me at Leeds, and I
apprehend they are correct.
That being so, I think that Baron Huddleston did not follow these rules
and tests, but others. Take his summing up as a whole, as I think we
ought, he left the case as if the burden of proving there was no malice
lay on the defendant, but if the occasion be privileged, the _onus_ of
showing malice is at once thrown on the plaintiff. Further, in order to
guide the jury as to what malice was, he read the passage in Bromage
_v._ Prosser; what he read there is not a definition of malice in fact,
at all, but of that malice which is a technical term in certain
pleadings, where it simply means “wilfully.” It has been held, that in
such pleadings the absence of the word maliciously is immaterial if the
word wilfully is present—because they are in such pleadings synonymous
terms. Then, I think the passage at the end of the summing up is really
a recapitulation of the sense of the whole summing up, and might lead
the jury to believe that, although they were of opinion that the
defendant did believe what he stated, he would not be protected unless
his belief was a reasonable one, as distinguished from a pig-headed,
obstinate, and insensible one. But the real question, as I have stated,
is, whether the defendant did, in fact, believe his statement,[509] or
whether being angry or moved by some other indirect motive, did not
know, and did not care, whether his statement was true or false.
Questions of pig-headedness and obstinacy may be tests as to whether a
man really did honestly believe or not, but Baron Huddleston left them
as if they were of the essence of the definition of malice.
The direction was therefore wrong if the occasions were privileged. That
they were I have a very strong opinion. The only occasion disputed is
that of the communication to Mr. Green the curate. I am clearly of
opinion that that was privileged. I think that where a clergyman
consults his curate as to his conduct in an ecclesiastical matter, the
occasion is a privileged one.
As to the other points, I think that at least the verdict was against
the evidence. But I think more, I think there was no evidence fit to be
submitted to a jury, and, therefore, if on a new trial the facts remain
the same, the judge’s duty will be to direct the jury that there is no
case. In this matter, therefore, there has been a miscarriage. But I
think that the case is not one in which to apply Order XL., rule 10, and
enter the verdict for the defendant, as it does not follow that on a new
trial further evidence may not be forthcoming.
_Appeal allowed._
CARPENTER _v._ BAILEY
SUPREME COURT, NEW HAMPSHIRE, DECEMBER, 1873.
_Reported in 53 New Hampshire Reports, 590._
This is an action on the case for a libel, by J. N. Carpenter against J.
H. Bailey, the writ bearing date September 21, 1869.[510] The
declaration alleges, that, on April 20, 1869, the plaintiff was a
paymaster in the navy, stationed as purchasing agent at Portsmouth;
that, by the rules of the navy department, he was entitled to remain on
that station three years; and that the defendant, contriving, &c.,
published of him the following libel: “To the Honorable the Senators and
Members of the House of Representatives in Congress from New Hampshire:
The undersigned, after much patience has been exhausted, beg to
remonstrate against the further continuance at this station of Paymaster
J. N. Carpenter as purchasing agent. In all our struggles, Paymaster
Carpenter has always voted against us, carrying the straight Democratic
ticket, throwing his patronage adversely to the friends of General
Grant, and always filling the requirements of a tool sent here by
ex-Secretary Welles to carry out the interests of Andrew Johnson. May we
hope for relief from such a burden? Let the rebel sympathizer be
exchanged for a man who will have office hours of a convenient kind, and
will be found there _at least once a day_ to attend to those having
business there, and officers and citizens will alike be grateful.
Portsmouth, N. H., April 20, 1869. E. G. Peirce, Jr., Chas. Robinson,
Aaron Young, Daniel J. Vaughan, E. A. Stevens, W. H. Hackett, John H.
Bailey, Paine Durkee.”
The defendant pleaded in substance that he was informed and believed
that the plaintiff had done the things charged in the petition and that
he believed that “the public good, and the welfare of said
administration of General Grant, required that the said plaintiff should
be removed from said office at said station, and that a suitable officer
should be put there in his stead, and that the senators and members of
the House of Representatives in Congress from the State of New Hampshire
were the proper persons and officers to be petitioned in order to
procure the removal of the said plaintiff from said office at said naval
station, the defendant, in good faith, and without malice or ill-will to
the said plaintiff, but in order to procure the removal of the plaintiff
for the causes aforesaid from the said office, signed said petition to
said senators and representatives containing said supposed libellous
words in the plaintiff’s declaration mentioned, as he lawfully might
have done, for the cause aforesaid, and this he is ready to verify.”
Wherefore, &c.
To this plea the plaintiff demurred generally.
SARGENT, C. J. If the defendant cannot justify by showing the truth of
the matter charged, he may excuse the publication by showing that it was
made upon a lawful occasion, upon probable cause, and from good motives.
It is also said that matter in excuse in a prosecution for libel is
where the defendant, upon a lawful occasion, proceeded with good motives
upon probable grounds,—that is, upon reasons that were apparently good,
but upon a supposition which turns out to be unfounded. This is a very
different thing from showing the actual truth of the allegations: where
that is proved with a proper occasion, it is a justification without
regard to motives; but where the statements made prove false, the
defendant needs to show not only a proper occasion, but a good motive
also,—for, if the matter be untrue and the motive bad, how could the end
be justified or even excused? But when the occasion is proper, one may
be excused for stating what proves to be untrue, if he had probable
cause to believe it true, and spoke it from good motives; see
authorities, 9 N. H. 45.
So, in Palmer _v._ Concord, 48 N. H. 217, it is said, by Smith, J., that
most of what are called “privileged communications” are conditionally,
not absolutely, privileged. The question is one of good faith, or
motive, and can be settled only by a jury. A court cannot rule that a
communication is privileged, without assuming the conditions on which it
is held to be privileged, namely, that it was made in good faith, for a
justifiable purpose, and with a belief, founded on reasonable grounds,
of its truth;—and see cases cited.
In the case before us, the occasion would be a lawful one, provided the
motive was good, and there was probable cause. And the question is,
whether the mere fact, that the defendant had been informed and believed
that a fact was so, is equivalent to having probable cause to believe it
to be so. And we think it could not be assumed that it was so. A person
might be informed of a fact by one in whom he might, for some special
reason, have confidence, but to whom no one else would give the
slightest credence; and a jury would readily find that a belief in that
case was founded upon information which would not amount to probable
cause for the belief of any man of ordinary capacity. The question for
the jury would be, not whether the defendant believed it, but had he
probable cause to believe it? There might be belief without probable
cause for it; and hence it would not be sufficient to allege merely
information and belief, because that might not, in a given case, amount
to probable cause. The fourth plea is substantially correct in form, and
goes as far as the rule thus laid down will warrant; and we think this
third plea is insufficient.
_Demurrer sustained._[511]
CAMPBELL _v._ SPOTTISWOODE
IN THE QUEEN’S BENCH, APRIL 18, 1863.
_Reported in 3 Best & Smith, 769._
COCKBURN, C. J.[512] I am of opinion that there ought to be no rule. The
article on which this action is brought is undoubtedly libellous. It
imputes to the plaintiff that, in putting forth to the public the sacred
cause of the dissemination of religious truth among the heathen, he was
acting as an impostor, and that his purpose was to put money into his
own pocket by obtaining contributions to his newspaper. The article also
charges that, in furtherance of that base and sordid purpose, he
published in his newspaper the name of a fictitious person as the
authority for his statements, and still further that, with a view to
induce persons to contribute towards his professed cause, he published a
fictitious subscription list. These are serious imputations upon the
plaintiff’s moral as well as public character.
It is said, on behalf of the defendant, that, as the plaintiff addressed
himself to the public in a matter, not only of public, but of universal
interest, his conduct in that matter was open to public criticism, and I
entirely concur in that proposition. If the proposed scheme were
defective, or utterly disproportionate to the result aimed at, it might
be assailed with hostile criticism. But then a line must be drawn
between criticism upon public conduct and the imputation of motives by
which that conduct may be supposed to be actuated; one man has no right
to impute to another, whose conduct may be fairly open to ridicule or
disapprobation, base, sordid, and wicked motives, unless there is so
much ground for the imputation that a jury shall find, not only that he
had an honest belief in the truth of his statements, but that his belief
was not without foundation.
In the present case, the charges made against the plaintiff were
unquestionably without foundation. It may be that, in addition to the
motive of religious zeal, the plaintiff was not wholly insensible to the
collateral object of promoting the circulation of his newspaper, but
there was no evidence that he had resorted to false devices to induce
persons to contribute to his scheme. That being so, Mr. Bovill is
obliged to say that, because the writer of this article had a _bona
fide_ belief that the statements he made were true, he was privileged. I
cannot assent to that doctrine. It was competent to the writer to have
attacked the plaintiff’s scheme; and perhaps he might have suggested,
that the effect of the subscriptions which the plaintiff was asking the
public to contribute would be only to put money into his pocket. But to
say that he was actuated only by the desire of putting money into his
pocket, and that he resorted to fraudulent expedients for that purpose,
is charging him with dishonesty: and that is going further than the law
allows.
It is said that it is for the interests of society that the public
conduct of men should be criticised without any other limit than that
the writer should have an honest belief that what he writes is true. But
it seems to me that the public have an equal interest in the maintenance
of the public character of public men; and public affairs could not be
conducted by men of honor with a view to the welfare of the country, if
we were to sanction attacks upon them, destructive of their honor and
character, and made without any foundation. I think the fair position in
which the law may be settled is this: that where the public conduct of a
public man is open to animadversion, and the writer who is commenting
upon it makes imputations on his motives which arise fairly and
legitimately out of his conduct so that a jury shall say that the
criticism was not only honest, but also well founded, an action is not
maintainable.[513] But it is not because a public writer fancies that
the conduct of a public man is open to the suspicion of dishonesty, he
is therefore justified in assailing his character as dishonest.[514]
The cases cited do not warrant us in going that length. In Paris _v._
Levy, 2 F. & F. 71, there may have been an honest and well-founded
belief that the man who published the handbill which was commented upon
could only have had a bad motive in publishing it, and if the jury were
of that opinion, the writer who attacked him in the public press would
be protected. We cannot go farther than that.
CROMPTON, J. I am of the same opinion.... The first question is, whether
the article on which this action is brought is a libel or no libel,—not
whether it is privileged or not. It is no libel, if it is within the
range of fair comment, that is, if a person might fairly and _bona fide_
write the article; otherwise it is. It is said that there is a
privilege, not to writers in newspapers only but to the public in
general, to comment on the public acts of public men, provided the
writer believes that what he writes is true; in other words, that this
belongs to the class of privileged communications, in which the malice
of the writer becomes a question for the jury; that is, where, from the
particular circumstances or position in which a person is placed, there
is a legal or social duty in the nature of a private or peculiar right,
as opposed to the rights possessed by the community at large, to assert
what he believes. In these cases of privilege there is an exemption from
legal liability in the absence of malice; and it is necessary to prove
actual malice. But there is no such privilege here. It is the right of
all the Queen’s subjects to discuss public matters; but no person can
have a right on that ground to publish what is defamatory merely because
he believes it to be true. If this were so, a public man might have base
motives imputed to him without having an opportunity of righting
himself. Therefore it is necessary to confine privilege, as the law has
always confined it, to cases of real necessity or duty, as that of a
master giving a servant a character, or of a person who had been robbed
charging another with robbing him. Though the word “privilege” is used
loosely in some of the cases as applied to the right which every person
has to comment on public matters, I think that in all the cases cited
the real question was whether the alleged libel was a fair comment such
as every person might make upon a public matter, and if not, there was
no privilege.
BLACKBURN, J. I also think that the law governing this case is so
clearly settled that we ought not to grant a rule. It is important to
bear in mind that the question is, not whether the publication is
privileged, but whether it is a libel. The word “privilege” is often
used loosely, and in a popular sense, when applied to matters which are
not, properly speaking, privileged. But, for the present purpose, the
meaning of the word is that a person stands in such a relation to the
facts of the case that he is justified in saying or writing what would
be slanderous or libellous in any one else. For instance, a master
giving a character of a servant stands in a privileged relation; and the
cases of a memorial to the Lord Chancellor or the Home Secretary on the
conduct of a justice of the peace, Harrison _v._ Bush, and of a
statement to a public functionary, reflecting upon some public officer,
Beatson _v._ Skene, 5 H. & N. 538, rank themselves under that class. In
these cases no action lies unless there is proof of express malice. If
it could be shown that the editor or publisher of a newspaper stands in
a privileged position, it would be necessary to prove actual malice. But
no authority has been cited for that proposition;[515] and I take it to
be certain that he has only the general right which belongs to the
public to comment upon public matters, for example, the acts of a
minister of state; or, according to modern authorities somewhat
extending the doctrine, where a person has done or published anything
which may fairly be said to invite comment, as in the case of a handbill
or advertisement; Paris _v._ Levy, 2 F. & F. 71. In such cases every one
has a right to make fair and proper comment; and, so long as it is
within that limit, it is no libel.
The question of libel or no libel, at least since Fox’s Act (32 G. 3, c.
60), is for the jury; and in the present case, as the article published
by the defendant obviously imputed base and sordid motives to the
plaintiff, that question depended upon another,—whether the article
exceeded the limits of a fair and proper comment on the plaintiff’s
prospectus; and this last question was therefore rightly left to the
jury. Then Mr. Bovill asked that a further question should be left to
them, viz., whether the writer of the article honestly believed that it
was true; and the jury have found that he did. We have to say whether
that prevents an action being maintained. I think not. _Bona fide_
belief in the truth of what is written is no defence to an action; it
may mitigate the amount, but it cannot disentitle the plaintiff to
damages.
_Rule refused._[516]
CARR _v._ HOOD
BEFORE LORD ELLENBOROUGH, C. J., LONDON SITTINGS AFTER TRINITY TERM,
1808.
_Reported in 1 Campbell, 355, n._
The declaration stated, that the plaintiff, before the publishing of any
of the false, scandalous, malicious, and defamatory libels thereinafter
mentioned, was the author of, and had sold for divers large sums of
money, the respective copyrights of divers books of him the said Sir
John, to wit a certain book entitled “The Stranger in France,” a certain
other book, entitled “A Northern Summer,” a certain other book, entitled
“The Stranger in Ireland,” &c. which said books had been respectively
published in 4to, yet that defendant intending to expose him to, and to
bring upon him great contempt, laughter, and ridicule, falsely and
maliciously published a certain false, scandalous, malicious, and
defamatory libel, in the form of a book, of and concerning the said Sir
John, and of and concerning the said books, of which the said Sir John
was the author as aforesaid, which same libel was entitled “My Pocket
Book, or Hints for a Ryghte Merrie and conceited Tour, in quarto, to be
called The Stranger in Ireland in 1805, (thereby alluding to the said
book of the said Sir John, thirdly above mentioned,) by a knight errant
(thereby alluding to the said Sir John),” and which same libel contained
therein a certain false, scandalous, malicious, and defamatory print, of
and concerning the said Sir John, and of and concerning the said books
of the said Sir John, 1st and 2dly above mentioned, therein called,
“Frontispiece,” and entitled “The Knight (meaning the said Sir John)
leaving Ireland with Regret,” and containing and representing in the
said print, a certain false, scandalous and malicious, defamatory, and
ridiculous representation of the said Sir John, in the form of a man of
ludicrous and ridiculous appearance, holding a pocket-handkerchief to
his face, and appearing to be weeping, and also containing therein a
certain false, malicious, and ridiculous representation of a man of
ludicrous and ridiculous appearance, following the said representation
of the said Sir John, and representing a man loaded with, and bending
under the weight of three large books, one of them having the word
“Baltic,” printed on the back thereof, &c., and a pocket-handkerchief
appearing to be held in one of the hands of the said representation of a
man, and the corners thereof appearing to be held or tied together, as
if containing something therein, with the printed word “wardrobe”
depending therefrom, (thereby falsely, scandalously, and maliciously,
meaning and intending to represent, for the purpose of rendering the
said Sir John ridiculous, and exposing him to laughter, ridicule, and
contempt, that one copy of the said 1st mentioned book of the said Sir
John, and two copies of the said book of the said Sir John 2dly above
mentioned, were so heavy as to cause a man to bend under the weight
thereof, and that his the said Sir John’s wardrobe was very small, and
capable of being contained in a pocket-handkerchief,) and which said
libel also contained, &c. &c. The declaration concluded by laying as
special damage, that the said Sir John had been prevented and hindered
from selling to Sir Richard Philips Knt. for a large sum of money to wit
£600, the copyright of a certain book or work of him the said Sir John,
of which the said Sir John was the author, containing an account of a
tour of him the said Sir John through part of Scotland, which but for
the publishing of the said false, scandalous, malicious, and defamatory
libels, he the said Sir John would, could, and might have sold to the
said Sir Richard Philips for the said last mentioned sum of money, and
the same remained wholly unsold and undisposed of, and was greatly
depreciated and lessened in value to the said Sir John.—Plea, not
guilty.
LORD ELLENBOROUGH, as the trial was proceeding, intimated an opinion,
that if the book published by the defendants only ridiculed the
plaintiff as an author, the action could not be maintained.
_Garrow_, for the plaintiff, allowed, that when his client came forward
as an author, he subjected himself to the criticism of all who might be
disposed to discuss the merits of his works; but that criticism must be
fair and liberal; its object ought to be to enlighten the public, and to
guard them against the supposed bad tendency of a particular publication
presented to them, not to wound the feelings and to ruin the prospects
of an individual. If ridicule was employed, it should have some bounds.
While a liberty was granted of analyzing literary productions, and
pointing out their defects, still he must be considered as a libeller,
whose only object was to hold up an author to the laughter and contempt
of mankind. A man with a wen upon his neck perhaps could not complain if
a surgeon in a scientific work should minutely describe it, and consider
its nature and the means of dispersing it; but surely he might support
an action for damages against any one who should publish a book to make
him ridiculous on account of this infirmity, with a caricature print as
a frontispiece. The object of the book published by the defendants
clearly was, by means of immoderate ridicule to prevent the sale of the
plaintiff’s works, and entirely to destroy him as an author. In the late
case of Tipper _v._ Tabbart, 1 Camp. 350, his lordship had held that a
publication by no means so offensive or prejudicial to the object of it,
was libellous and actionable.
LORD ELLENBOROUGH. In that case the defendant had falsely accused the
plaintiff of publishing what he had never published. Here the supposed
libel has only attacked those works of which Sir John Carr is the avowed
author; and one writer in exposing the follies and errors of another may
make use of ridicule however poignant. Ridicule is often the fittest
weapon that can be employed for such a purpose. If the reputation or
pecuniary interests of the person ridiculed suffer, it is _damnum absque
injuria_. Where is the liberty of the press if an action can be
maintained on such principles? Perhaps the plaintiff’s “Tour through
Scotland” is now unsaleable; but is he to be indemnified by receiving a
compensation in damages from the person who may have opened the eyes of
the public to the bad taste and inanity of his compositions? Who would
have bought the works of Sir Robert Filmer after he had been refuted by
Mr. Locke? but shall it be said that he might have sustained an action
for defamation against that great philosopher, who was laboring to
enlighten and ameliorate mankind? We really must not cramp observations
upon authors and their works. They should be liable to criticism, to
exposure, and even to ridicule, if their compositions be ridiculous;
otherwise the first who writes a book on any subject will maintain a
monopoly of sentiment and opinion respecting it. This would tend to the
perpetuity of error.—Reflection on personal character is another thing.
Show me an attack on the moral character of this plaintiff, or any
attack upon his character unconnected with his authorship, and I shall
be as ready as any judge who ever sat here to protect him; but I cannot
hear of malice on account of turning his works into ridicule.
The counsel for the plaintiff still complaining of the unfairness of
this publication, and particularly of the print affixed to it, the trial
proceeded.
The _Attorney-General_ having addressed the jury on behalf of the
defendants—
LORD ELLENBOROUGH said, Every man who publishes a book commits himself
to the judgment of the public, and any one may comment upon his
performance. If the commentator does not step aside from the work, or
introduce fiction for the purpose of condemnation, he exercises a fair
and legitimate right. In the present case, had the party writing the
criticism followed the plaintiff into domestic life for the purposes of
slander, that would have been libellous; but no passage of this sort has
been produced, and even the caricature does not affect the plaintiff,
except as the author of the book which is ridiculed. The works of this
gentleman may be, for ought I know, very valuable; but whatever their
merits, others have a right to pass their judgment upon them,—to censure
them if they be censurable, and to turn them into ridicule if they be
ridiculous. The critic does a great service to the public, who writes
down any vapid or useless publication, such as ought never to have
appeared. He checks the dissemination of bad taste, and prevents people
from wasting both their time and money upon trash.—I speak of fair and
candid criticism; and this every one has a right to publish, although
the author may suffer a loss from it. Such a loss the law does not
consider as an injury; because it is a loss which the party ought to
sustain. It is in short the loss of fame and profits to which he was
never entitled. Nothing can be conceived more threatening to the liberty
of the press than the species of action before the court. We ought to
resist an attempt against free and liberal criticism at the
threshold.—The CHIEF JUSTICE concluded by directing the jury, that if
the writer of the publication complained of had not travelled out of the
work he criticised for the purpose of slander, the action would not lie;
but if they could discover in it anything personally slanderous against
the plaintiff, unconnected with the works he had given to the public, in
that case he had a good cause of action, and they would award him
damages accordingly.
_Verdict for the defendants._[517]
MERIVALE _v._ CARSON
IN THE COURT OF APPEAL, DECEMBER 2, 1887.
_Reported in 20 Queen’s Bench Division, 275._
Appeal by the defendant against the refusal of a divisional court
(Mathew and Grantham, JJ.) to allow a new trial of the action, or to
enter judgment for the defendant.
The action was brought to recover damages in respect of an alleged
libel. At the trial before Field, J., it appeared that the plaintiff and
his wife were the joint authors of a play called “The Whip Hand.” The
defendant was the editor of a theatrical newspaper called “The Stage.”
Early in May, 1886, the play was performed at a theatre in Liverpool. On
May 7 a criticism of the play was published in the defendant’s
newspaper. The part of the article charged in the statement of claim as
libellous was as follows: “‘The Whip Hand,’ the joint production of Mr.
and Mrs. Herman Merivale, gives us nothing but a hash-up of ingredients
which have been used _ad nauseam_, until one rises in protestation
against the loving, confiding, fatuous husband with the naughty wife and
her double existence, the good male genius, the limp aristocrat, and the
villainous foreigner. And why dramatic authors will insist that in
modern society comedies the villain must be a foreigner, and the
foreigner must be a villain, is only explicable on the ground, we
suppose, that there is more or less of romance about such gentry. It is
more in consonance with accepted notions that your Continental croupier
would make a much better fictitious prince, marquis, or count than
would, say, an English billiard-marker or stablelout. And so the Marquis
Colonna in ‘The Whip Hand’ is offered up by the authors upon the altar
of tradition and sacrificed in the usual manner when he gets too
troublesome to permit of the reconciliation of husband and wife, and
lover and maiden, and is proved, also much as usual, to be nothing more
than a kicked-out croupier.” The innuendo suggested was that the article
implied that the play was of an immoral tendency.
It was admitted that there was no adulterous wife in the play.
Field, J., in the course of his summing-up to the jury, said: “The
question is, first, whether this criticism bears the meaning which the
plaintiffs put upon it. If it is a fair temperate criticism, and does
not bear that meaning, or is not fairly to be read as having that
meaning, then your verdict will be for the defendants.... It is not for
a moment suggested by any one that the defendant is animated by the
smallest possible malice towards the plaintiffs. There is no ground for
saying so, and no one has said so.... The malice which is necessary in
this action is one, which, if it existed at all, will be because the
defendant has exceeded his right of criticism upon the play. You have
the play before you, you must judge for yourselves. If it is no more
than fair, honest, independent, bold, even exaggerated, criticism, then
your verdict will be for the defendant. It is for the plaintiffs to make
out their case. They have to satisfy you that it is more than that,
otherwise they cannot complain. If you are satisfied upon the evidence
that it is more than that, then you will give your verdict for the
plaintiffs.”
The jury found a verdict for the plaintiffs with one shilling damages,
and the judge entered judgment for the plaintiffs accordingly, and
declined to deprive them of costs.
The defendant appealed.[518]
LORD ESHER, M. R. This action is brought in respect of an alleged libel
contained in a criticism by the defendant upon a play written by the
plaintiffs. The first thing to be considered is, what are the questions
which in such a case ought to be left to the jury? The first question to
be left to them is, what is the meaning of the alleged libel? The jury
must look at the criticism, and say what in their opinion any reasonable
man would understand by it. I am not prepared to say that in coming to
their conclusion they would not also have to look at the work
criticised. That, however, is not very material for us to consider now.
The proper question was put to the jury in the present case. Two
interpretations of the defendant’s article were placed before them. One
was that it meant that the play is founded upon adultery, without
containing any stigma on the fact that it is so founded. The defendant’s
article is alleged to be libellous in that it attributed to the
plaintiffs that they had written a play founded upon adultery, without
any objection to it on their part, in other words, that they had written
an immoral play. On behalf of the defendant it was said that the article
had no such meaning, that the expression “naughty wife” does not mean
“adulterous wife.” It would not have that meaning in every case, but the
question is whether, looking at the context of the article, it has that
meaning. If the court should come to the conclusion that the expression
could not by any reasonable man be thought to have that meaning, they
could overrule the verdict of the jury; otherwise the question is for
the jury.
What is the next question to be put to the jury? Are they to be told
that the criticism of a play is a privileged occasion, within the
well-settled meaning of the word “privilege,” and that their verdict
must go for the defendant, unless the plaintiff can prove malice in
fact, that is, that the writer of the article was actuated by an
indirect or malicious motive? I think it is clear that that is not the
law, and that it was so decided in Campbell _v._ Spottiswoode, which has
never been overruled. All the judges, both before and ever since that
case, have acted upon the view there expressed, that a criticism upon a
written published work is not a privileged occasion. Blackburn, J., in
his judgment, shows why it is not a privileged occasion. A privileged
occasion is one on which the privileged person is entitled to do
something which no one who is not within the privilege is entitled to do
on that occasion. A person in such a position may say or write about
another person things which no other person in the kingdom can be
allowed to say or write. But, in the case of a criticism upon a
published work, every person in the kingdom is entitled to do, and is
forbidden to do exactly the same things, and therefore the occasion is
not privileged. Therefore the second question to be put to the jury is,
whether the alleged libel is or is not a libel. The form in which that
question should be put is, I think, best expressed by Crompton, J., in
Campbell _v._ Spottiswoode. He says: “Nothing is more important than
that fair and full latitude of discussion should be allowed to writers
upon any public matter, whether it be the conduct of public men, or the
proceedings in courts of justice, or in Parliament, or the publication
of a scheme, or a literary work. But it is always to be left to a jury
to say whether the publication has gone beyond the limits of a fair
comment on the subject-matter discussed. A writer is not entitled to
overstep those limits, and impute base and sordid motives which are not
warranted by the facts, and I cannot for a moment think, because he has
a _bona fide_ belief that he is publishing what is true, that is any
answer to an action for libel.” He says that upon the answer to the
question there stated it depends whether the article upon which the
action is brought is or is not a libel. The question is not whether the
article is privileged, but whether it is a libel. What is the meaning of
a “fair comment”? I think the meaning is this: is the article in the
opinion of the jury beyond that which any fair man, however prejudiced
or however strong his opinion may be, would say of the work in question?
Every latitude must be given to opinion and to prejudice, and then an
ordinary set of men with ordinary judgment must say whether any fair man
would have made such a comment on the work. It is very easy to say what
would be clearly beyond that limit; if, for instance, the writer
attacked the private character of the author. But it is much more
difficult to say what is within the limit. That must depend upon the
circumstances of the particular case. I think the right question was
really left by Field, J., to the jury in the present case. No doubt you
can find in the course of his summing up some phrases which, if taken
alone, may seem to limit too much the question put to the jury. But,
when you look at the summing up as a whole, I think it comes in
substance to the final question which was put by the judge to the jury:
“If it is no more than fair, honest, independent, bold, even
exaggerated, criticism, then your verdict will be for the defendants.”
He gives a very wide limit, and, I think, rightly. Mere exaggeration, or
even gross exaggeration, would not make the comment unfair. However
wrong the opinion expressed may be in point of truth, or however
prejudiced the writer, it may still be within the prescribed limit. The
question which the jury must consider is this: Would any fair man,
however prejudiced he may be, however exaggerated or obstinate his view,
have said that which this criticism has said of the work which is
criticised? If it goes beyond that, then you must find for the
plaintiff; if you are not satisfied that it does, then it falls within
the allowed limit, and there is no libel at all. I cannot doubt that the
jury were justified in coming to the conclusion to which they did come,
when once they had made up their minds as to the meaning of the words
used in the article, viz. that the plaintiffs had written an obscene
play; and no fair man could have said that. There was therefore a
complete misdescription of the plaintiffs’ work, and the inevitable
conclusion was that an imputation was cast upon the characters of the
authors. Even if I had thought that the right direction had not been
given to the jury, I should have declined to grant a new trial, for the
same verdict must inevitably have been found if the jury had been
rightly directed.
Another point which has been discussed is this: It is said that if in
some other case the alleged libel would not be beyond the limits of fair
criticism, and it could be shown that the defendant was not really
criticising the work, but was writing with an indirect and dishonest
intention to injure the plaintiffs, still the motive would not make the
criticism a libel. I am inclined to think that it would, and for this
reason, that the comment would not then really be a criticism of the
work. The mind of the writer would not be that of a critic, but he would
be actuated by an intention to injure the author.
In my opinion this appeal must be dismissed.
BOWEN, L. J. We must begin with asking ourselves, what is the true
meaning of the words used in the alleged libel? We have the benefit of
the machinery which the law gives—the verdict of a jury—for ascertaining
the meaning, and it must now be taken to have been conclusively settled,
that the writer of the criticism has imputed to the plaintiffs that the
story of their play turns in its main incident upon an adulterous wife,
and in such a way as not to lead any one to suppose that the plaintiffs
objected to the adultery, but, on the contrary, that they had treated
the adultery as a spicy incident in the play, without expressing any
opinion as to its morality. It has been admitted by the defendant that
the play does not in fact contain any adulterous wife, that there is no
incident of adultery in it, and therefore it is not open to the
suggestion that the plaintiffs have treated adultery lightly in such a
way as to tend to immorality. These are the facts.
What then is the law applicable to them? We must see, first, what is the
question which ought to have been left to the jury on this assumption of
the meaning of the article, and then whether it was in fact left to
them, and whether there was any miscarriage on their part. I take
precisely the same view as the Master of the Rolls with regard to the
way in which the word “privilege” ought to be used. The present case is
not, strictly speaking, one of “privileged occasion.” In a legal sense
that term is used with reference to a case in which one or more members
of the public are clothed with a greater immunity than the rest. But in
the present case we are dealing with a common right of public criticism
which every subject of the realm equally enjoys,—the right of publishing
a written criticism upon a literary work which is offered to public
criticism.
It is true that a different metaphysical exposition of this common right
is to be found in the judgment of Willes, J., in Henwood _v._ Harrison,
Law Rep. 7 C. P. 606. That learned judge and the majority of the Court
of Common Pleas seem to have treated this right as a branch of the
general law of privilege, and to have found a justification for the use
of the word “privilege” in the subject matter of the criticism, although
there is no limit of the number of the persons entitled to make the
criticism. With great respect to Willes, J., I agree with the Master of
the Rolls that this is not so good an exposition of the right as that
which is given by Blackburn, J., and Crompton, J., in Campbell _v._
Spottiswoode. But the question is rather academical than practical, for
I do not think it would make any substantial difference in the present
case which view was the right one. But, among other reasons, why I
prefer the view of Blackburn, J., and Crompton, J., is this, that it
leaves undisturbed the mode of directing the jury in cases of this class
which has been ordinarily adopted, viz., to begin by asking them whether
they think the limits of fair criticism have been passed. That implies
that there is no libel if those limits are not passed. It is only when
the writer goes beyond the limits of fair criticism that his criticism
passes into the region of libel at all. This leaves unsettled the
inquiry, and perhaps it was intended in Campbell _v._ Spottiswoode (a
case which has never been questioned) to leave it unsettled, what is the
standard for the jury of “fair criticism”? The criticism is to be
“fair,” that is, the expression of it is to be fair. The only limitation
is upon the mode of expression. In this country a man has a right to
hold any opinion he pleases, and to express his opinion, provided that
he does not go beyond the limits which the law calls “fair,” and,
although we cannot find in any decided case an exact and rigid
definition of the word “fair,” this is because the judges have always
preferred to leave the question what is “fair” to the jury. The nearest
approach, I think, to an exact definition of the word “fair” is
contained in the judgment of Lord Tenterden, C. J., in Macleod _v._
Wakley, 3 C. & P., at p. 313, where he said, “Whatever is fair, and can
be reasonably said of the works of authors or of themselves, as
connected with their works, is not actionable, unless it appears that,
under the pretext of criticising the works, the defendant takes an
opportunity of attacking the character of the author: then it will be a
libel.” It must be assumed that a man is entitled to entertain any
opinion he pleases, however wrong, exaggerated, or violent it may be,
and it must be left to the jury to say whether the mode of expression
exceeds the reasonable limits of fair criticism.
In the case of literary criticism it is not easy to conceive what would
be outside that region, unless the writer went out of his way to make a
personal attack on the character of the author of the work which he was
criticising. In such a case the writer would be going beyond the limits
of criticism altogether, and therefore beyond the limits of fair
criticism. Campbell _v._ Spottiswoode was a case of that kind, and there
the jury were asked whether the criticism was fair, and they were told
that, if it attacked the private character of the author, it would be
going beyond the limits of fair criticism. Still there is another class
of cases in which, as it seems to me, the writer would be travelling out
of the region of fair criticism,—I mean if he imputes to the author that
he has written something which in fact he has not written. That would be
a misdescription of the work. There is all the difference in the world
between saying that you disapprove of the character of a work, and that
you think it has an evil tendency, and saying that a work treats
adultery cavalierly, when in fact there is no adultery at all in the
story. A jury would have a right to consider the latter beyond the
limits of fair criticism.
Applying the law to the present case, we have to see whether the learned
judge misdirected the jury, having regard to their finding as to the
true construction of the article. Their construction of the words of the
article could not have been affected by what he said to them about the
meaning of “fair criticism.” The alleged libel stated that the story of
the plaintiffs’ play turned upon adultery. In a case of manifest
misdescription such as this the judge is not bound to go into all the
minutiæ as if the libel had been of a different character, and his
summing-up must be read with reference to this fact. I have read through
the summing-up of Field, J., and, though I do not think that his
language was altogether exact, yet what possible harm could it have done
having regard to the facts of the case? The jury had to deal with a case
of positive misdescription, a question not of opinion, but of fact. Did
not that fall clearly beyond the limits of fair criticism? Could this
court since the Judicature Act set aside the verdict of the jury, merely
because the language of the learned judge was not exactly that which he
would have used if he had written his summing-up? Assuming the
interpretation the jury put on the meaning of the words to be correct,
as we must assume, I entertain no doubt as to the correctness of the
remainder of the verdict. And, even if the view of the law as to
privilege which I do not adopt were the right view, I do not think it
would make any difference in the present case, because, the
misrepresentation being clear, the writer having not merely said that
the play had an evil tendency, but having imputed to the authors that it
was founded on adultery when there is no adultery at all in it, the jury
would have inferred, if the question had been left sufficiently to them,
that the writer was actuated by a malicious motive; that is to say, by
some motive other than that of a pure expression of a critic’s real
opinion.
_Appeal dismissed._
THOMAS _v._ BRADBURY, AGNEW & CO.
IN THE COURT OF APPEAL, JUNE 25, 1906.
_Reported in [1906] 2 King’s Bench, 627._
Application by the defendants for a new trial or that judgment should be
entered for them in an action for libel tried before Darling, J., with a
jury.
The alleged libel was the following review in _Punch_ of the plaintiff’s
book:—
“MANGLED REMAINS.
“_Extract from the Recess Diary of Toby, M. P._
“Been reading ‘Fifty Years of Fleet Street’ just issued by Macmillan.
Purports to be the ‘Life and Recollections of Sir John Robinson,’ the
man who made, and for a quarter of a century maintained at high level,
the _Daily News_. The story is written by Mr. F. M. Thomas, who has
added a new terror to death. There are biographies of sorts ranging in
value with the personality of the subject and the skill of the compiler.
The former occasionally suffers from the incapacity of the latter. But
at least his individuality is scrupulously observed. Like Don José, what
he has said he has said, his observations and written memoranda not
being mixed up with what his biographer thinks he himself thought,
uttered, and recorded. Mr. Thomas goes about the biographer’s business
in fresh fashion, complacently announced by way of introduction to the
volume. ‘I have not thought it necessary or desirable,’ he writes, ‘to
indicate in all cases what is his (Sir John Robinson’s) and what is my
own. If there is anything amusing or entertaining in these pages, I am
quite content that my dear old chief should have the credit of it. The
dulness I take upon myself.’ Here be generosity! Here magnanimity! It is
true that in the performance of his task Mr. Thomas occasionally falls
from this high estate. More than once he airily alludes to ‘our diary’
and ‘our notes,’ as if he had prepared them in collaboration with his
chief. Possibly conscious for a moment of this indiscretion, and
reverting to more generous mood, he, approaching a particular narrative,
introduces it with the remark, ‘the incident may be given in the
diarist’s own words.’ The procedure is perhaps not unusual with earlier
biographers. With Mr. Thomas the relapse is rare. When he does let the
hapless subject speak for himself, he is relegated to small type. For
the rest, it is Mr. Thomas who _loquitur_, retelling poor Robinson’s
cherished stories as if they were his own, sometimes with heavy hand
brushing off the bloom. Even in these depressing circumstances there is
no mistaking Robinson’s sly humour, his gift of graphic
characterization. The worst of it is that, happening in the very same
page upon some banal remark, some pompous platitude, the alarmed reader,
recognizing Mr. Thomas, hastily turns over half-a-dozen pages, and
possibly misses a handful of the genuine ore. These are hard lines,
unjust to Robinson, unfair to the public. It is plain to see, from the
few unmutilated extracts from Robinson’s manuscript which illuminate the
book, that the materials at hand for a delightful biography were
abundant. For nearly forty years the manager of the _Daily News_ lived
in the very heart of things. He was behind most scenes of public life,
was more or less intimately acquainted with the principal personages
figuring in it. His sympathies were bountifully wide, his observation
alert, his sense of humour keen. He loved his newspaper work with almost
passionate affection. For him fifty years of Fleet Street were worth a
cycle of Cathay. That he habitually made notes of what he saw and heard
with the view to publication in biographical form is undoubted. Mr.
Thomas, impregnable in the chain armour of complacency, positively
admits it. ‘Robinson,’ he says, ‘did leave some diaries—our diaries—more
or less fragmentary, and a number of thick, closely-written volumes of
jottings in his own handwriting, descriptive of events of which he had
been an eyewitness and people he had seen and known.’ Where is this
treasure trove? Presumably portions the biographer was good enough to
regard as worth adapting are filtered through the wordy pages of larger
type. Happily the material is so good, its original literary form so
excellent, that even this unparalleled atrocity cannot quite spoil the
book. We who knew Robinson on his throne in Bouverie Street and at the
well-known table in the dining-room of the Reform Club, rich in
recollections of William Black, Payn, and Sala; who watched him enjoying
himself like a boy at theatre first nights; who recognized his rare
capacity as a newspaper man; who knew the kind heart hidden behind a
studiously cultured severity of manner in business relations—we, perhaps
jealously, cherish his memory, and regret the surprising chance that has
made possible this slight upon it.”
The defence admitted that the defendant Lucy wrote, and that the other
defendants published, the words complained of, and pleaded that the
words were incapable of a defamatory meaning; and further, that they
were written for publication and were published as a criticism and fair
comment upon the plaintiff’s book without any malice towards the
plaintiff, and were a fair and _bona fide_ criticism and comment upon
the book which was a matter of public interest.
At the trial the plaintiff’s case was, first, that the language of the
review itself was such as to furnish evidence that the writer was not in
truth criticising the book, but was maliciously attacking the author;
and, secondly, that there was evidence outside the review that the
defendant Lucy, in writing the criticism, was actuated by malice towards
the plaintiff. As extrinsic evidence of malice the plaintiff relied upon
the strained relations between Lucy and himself before the criticism was
published; on the fact that the criticism was published as a separate
article under the heading “Mangled Remains,” and was not included in
that part of the journal usually devoted to reviews of books under the
heading “Our Booking Office”; and on the answers and demeanor of Lucy in
the witness-box at the trial. At the close of the plaintiff’s case
counsel for the defendants submitted that there was no case to go to the
jury, upon the grounds that the article was incapable of a defamatory
meaning, and that there was no evidence that it exceeded the limits of
fair comment.
The learned judge declined to withdraw the case from the jury, who found
a verdict for the plaintiff with 300_l._ damages.
The defendants appealed.[519]
_Cur. adv. vult._
* * * * *
June 25. COLLINS, M. R., read the following judgment: This is an appeal
by the defendants from the verdict and judgment for the plaintiff in an
action of libel, tried before Darling, J., and a special jury, based on
a critique of a book written by the plaintiff. The critique was written
by the defendant Lucy, and appeared in _Punch_, of which the first
defendants are the publishers. The defence was fair comment. The learned
judge refused to withdraw the case from the jury, who found for the
plaintiff, with 300_l._ damages. The defendants do not complain of
misdirection other than that involved in holding that there was any
evidence fit for the consideration of a jury. They ask for judgment on
the ground that there was nothing in the article which any reasonable
jury could find to fall outside the limits of fair comment, or in the
alternative they ask for a new trial on the ground that the verdict was
against the weight of evidence.
The defendants pressed us strongly with the case of McQuire _v._ Western
Morning News Co., [1903] 2 K. B. 100, a decision of this court in an
action for libel in respect of an article criticising adversely a play
of which the plaintiff was the author, where the court set aside a
verdict and judgment for the plaintiff on the ground that there was no
evidence on which a rational verdict for the plaintiff could be founded.
There were, however, two distinctions between that case and the present.
There was admittedly in that case no evidence of actual malice unless it
could be inferred from the terms of the article itself, and there was
some reason for supposing that the direction was misleading. In the
present case the plaintiff’s counsel strenuously contended that there
was extrinsic evidence of malice in the proved relations of the parties
before the action; the special manner in which the particular article
appeared in _Punch_; and in the expressions which fell from the
defendant Lucy, coupled with his demeanor in the witness-box, and they
relied also on the terms of an apology subsequently printed as
fortifying their contention. They urged besides that the language of the
article itself raised a question for the jury as to its meaning, and
that upon their view of its meaning would depend the question whether it
exceeded the bounds of fair comment or not. The question, therefore, for
our decision is whether there was any evidence upon which a rational
verdict for the plaintiff could be founded. If so, the learned judge was
bound to leave it to the jury. I have already said that extrinsic
evidence of malice, which I have attempted to summarize, was allowed to
go to the jury. The defendants contended that this evidence amounted to
nothing, and that no reasonable jury could act upon it, but they also
raised a contention which alone, as it seems to me, gives any importance
to this case. Their point was that if the article itself, apart from the
extrinsic evidence, did not raise a case for the jury that the bounds of
fair comment had been overstepped, proof of actual malice on the part of
the writer could not affect the question or disturb his immunity. This
is a formidable contention. It involves the assertion that fair comment
is absolute, not relative, and must be measured by an abstract standard;
that it is a thing quite apart from the opinions and motives of its
author and his personal relations towards the writer of the thing
criticised. It involves the position also that an action based on a
criticism is wholly outside the ordinary law of libel, of which malice,
express or implied, has always been considered to be the gist.
The basis of this contention, such as it is, appears to be a
misconception of the effect of the gloss, if I may so phrase it, first
put upon the law of libel in relation to fair comment in the dicta of
Crompton, J., and Blackburn, J., in Campbell _v._ Spottiswoode, decided
in 1863, and subsequently approved in Merivale _v._ Carson, decided in
1887. I have already had occasion to examine the effect of these views
upon the law of libel in McQuire _v._ Western Morning News Co., [1903] 2
K. B. 100. In my opinion the substance of the matter remains unchanged
and malice remains exactly where it did. The dicta no doubt assert the
etymological inexactitude of the word “privilege” as connoting a right
common to the public at large, and the limits of the right itself are
pointed out which, whether it be called privilege or by any other name,
does not extend to cover misstatements of fact however _bona fide_;[520]
but they in no degree affect the standard by which the fairness of the
comment is to be judged or relieve the commentator from liability, if
the comment be malicious, if, indeed, it can then be described as
comment at all. The right, though shared by the public, is the right of
every individual who asserts it, and is, qua him, an individual right
whatever name it be called by, and comment by him which is colored by
malice cannot from his standpoint be deemed fair. He, and he only, is
the person in whose motives the plaintiff in the libel action is
concerned, and if he, the person sued, is proved to have allowed his
view to be distorted by malice, it is quite immaterial that somebody
else might without malice have written an equally damnatory criticism.
The defendant, and not that other person, is the party sued. This seems
to me quite clear in point of principle; but, as already pointed out in
McQuire _v._ Western Morning News Co., [1903] 2 K. B. 100, the law
continued to be administered after Campbell _v._ Spottiswoode, just as
it always had been before, down to and since Merivale _v._ Carson. That
case decided nothing inconsistent with the law of libel as thus
administered, though each of the learned judges expressed an opinion in
favor of the view taken in the dicta I have referred to of Crompton, J.,
and Blackburn, J., in preference to that of Willes, J., in Henwood _v._
Harrison, L. R. 7 C. P. 600. But, as already pointed out in McQuire _v._
Western Morning News Co., [1903] 2 K. B. 100, the difference between the
two views is, in the language of Bowen, L. J., in Merivale _v._ Carson,
a difference in the “metaphysical exposition” of the right and “is
rather academical than practical.” I think the head-note in the
last-mentioned case is to some extent the cause of what seems to me an
erroneous impression as to the effect of the decision. The words of that
note seem to suggest a difference of right, under the general law of
libel, in respect of communications made on a privileged occasion and
communications made in the shape of criticism on a matter of public
interest. In cases of privilege, properly so called, nothing that falls
outside the privilege is protected by it, and if defamatory it must be
otherwise justified. The occasion being privileged, the extent of the
privilege may vary according to the nature of the case and the limits of
the right or duty which is the basis of the privilege. But this is
precisely the position in the case where the right exercised is one
shared by the rest of the public, and not one limited to an individual
or a class. The extent of the right has to be ascertained, and in
respect of any communication which falls within it the immunity, if it
be not absolute, can be displaced only by proof of malice. In the case
of comment on literary works the occasion is created by the publication,
and a right then arises to criticise honestly, however adversely. No
such occasion would arise in respect of a private unpublished letter. If
a writer were to get hold of a private letter of a well-known author and
publish a damnatory article on the author’s literary style and taste, as
evidenced by the letter, it seems to me that he would have no immunity
from the ordinary law in respect of defamatory writings. The only
difference, then, in the legal incidents of ordinary privilege, limited
to individuals on the one hand and the right in the public to criticise
on the other, would seem to be that the one might, with somewhat less
latitude than the other, though not, perhaps, with perfect accuracy, be
described as “privilege.” Now, the head-note might possibly suggest, at
first sight at all events, particularly when it adds “Henwood _v._
Harrison, L. R. 7 C. P. 606, dissented from,” that not merely an
academical difference in the analysis of rights had been expressed, but
that there was a difference of substance in the bearing of malice in the
two cases in respect of communications or criticisms falling _prima
facie_ within the right or privilege. The limits of the right, as I have
already pointed out, may be, and are, different, but the law with
respect to communications that _prima facie_ fall within them is the
same. Proof of malice may take a criticism _prima facie_ fair outside
the right of fair comment, just as it takes a communication _prima
facie_ privileged outside the privilege. The particular allegation which
was unprotected in Merivale _v._ Carson was never within the “right”
when the facts were ascertained by the jury in interpreting the passage
impugned. Proof of _bona fide_ belief was therefore irrelevant; nothing
but proof of the truth could justify the allegation. If the analysis be
strictly carried out it will be found that the two rights, whatever name
they are called by, are governed by precisely the same rules. The only
practical difference is that in an action based on a criticism of a
published work the transaction begins by the admission, on the part of
the plaintiff, implied from the averment by him of publication of the
work criticised, that the comment came into existence on a protected
occasion. He is placed, therefore, in precisely the same position as he
would have been in had he sued in respect of a defamatory writing _prima
facie_ unprotected and therefore actionable, but had gone on to aver
facts which created a privilege strictly so called. Beginning thus at
this stage in the transaction, he would have accepted the onus of
proving malice in fact. If he had veiled the fact that the writing
criticised had become matter of public interest by publication it would
have been _prima facie_ libellous, and the defendant would have had to
plead such a publication as would let in the right to comment on a
matter of public interest in order to bring himself within the
protection. This shows that acceptance of the dicta under discussion
does not in the slightest degree affect the place of malice in the law
of libel, and that it is only by leaving out one step in the analysis
that the public right, as distinguished from the privilege, may appear
to carry with it different incidents. There is not even any decision
that the word privilege, as used in Henwood _v._ Harrison, to which Lord
Esher was himself a party, is not as good a word as any substitute that
can be suggested to express the right by which, in certain
circumstances, writing defamatory of another person may be published
with impunity, because the presumption of malice is negatived. For the
reasons I have given the difference is one of words only, and could not
be a matter of legal decision.
I have thought it worth while to sift this contention somewhat
elaborately, as it is apparently based upon a misconception which seems
to have a tendency to repeat itself as to the effect of Merivale _v._
Carson, on the law of libel. But the contention of the defendants can be
met, not by reference to principle only, but also by direct authority.
To go back to the source itself of the supposed new departure, Campbell
_v._ Spottiswoode, Blackburn, J., says: “Honest belief may be an
ingredient to be taken into consideration by the jury in determining
whether the publication is a libel, that is, whether it exceeds the
limits of a fair and proper comment.” In Merivale _v._ Carson itself
Lord Esher, M. R., deals with the question. He says: “It is said that if
in some other case the alleged libel would not be beyond the limits of
fair criticism, and it could be shown that the defendant was not really
criticising the work, but was writing with an indirect and dishonest
intention to injure the plaintiffs still the motive would not make the
criticism a libel. I am inclined to think that it would, and for this
reason, that the comment would not then really be a criticism of the
work. The mind of the writer would not be that of a critic, but he would
be actuated by an intention to injure the author.” Though the learned
judge in this passage expresses only an inclination of opinion, the
reason given seems to me to be conclusive. But in a very recent case in
this court, the point is actually decided: Plymouth Mutual Coöperative
and Industrial Society _v._ Traders’ Publishing Association, [1906] 1 K.
B. 403. The question there was whether an interrogatory addressed to the
state of mind of the defendant, who had pleaded fair comment in an
action of libel, was admissible. The court decided that it was,
following a previous decision of this court in a case of privilege
strictly so called. Vaughan Williams, L. J., referring to White & Co.
_v._ Credit Reform Association and Credit Index, [1905] 1 K. B. 653,
says at page 413 of the report: “It seems to me that that case shows
that an interrogatory of this kind is just as relevant and admissible in
a case where the defence is fair comment as in one where it is
privilege. In either case the question raised is really as to the state
of mind of the defendant when he published the alleged libel, the
question being in the one case whether he published it in the spirit of
malice, in the other whether he published it in the spirit of
unfairness. In either case, I think such an interrogatory as the one now
in question is admissible.” Fletcher Moulton, L. J., says at page 418 of
the report: “I am clear that, both in cases in which the defence of
privilege and in those in which the defence of fair comment is set up,
the state of mind of the defendant when he published the alleged libel
is a matter directly in issue.”
It is, of course, possible for a person to have a spite against another
and yet to bring a perfectly dispassionate judgment to bear upon his
literary merits; but, given the existence of malice, it must be for the
jury to say whether it has warped his judgment. Comment distorted by
malice cannot in my opinion be fair on the part of the person who makes
it. I am of opinion, therefore, that evidence of malice actuating the
defendant was admissible, and that the learned judge was right in
letting the evidence in this case go to the jury. But I am also of
opinion on a close examination of the alleged libel that, apart from the
extrinsic evidence of malice, the learned judge could not have withdrawn
the case from the jury. One point made by the plaintiff would, I think,
of itself suffice to establish this position. The defendant Lucy says in
the alleged libel “it is plain to see from the few unmutilated
extracts ... that the materials at hand for a delightful biography were
abundant.” This statement was described by the plaintiff in a letter to
the editor of _Punch_ as “simply untrue.” A short statement was
thereupon published in the issue of December 7, in which the defendant,
while accepting the plaintiff’s statement as to the paucity of
materials, quotes a passage from the preface to the book dealing with
the existence of materials, and concludes thus: “Toby, M. P., had at the
time of writing no knowledge of the subject beyond the definite
statements quoted in the biographer’s own words. He regrets that,
accepting them in their ordinary sense, he received and conveyed an
impression of Mr. Thomas’s literary methods which turns out to have been
erroneous.” He is thus in the difficulty of having to admit a
misstatement of fact in respect of which, to put it at the lowest, a
question must arise for the jury whether the passage he relied upon
justifies the statement. I think also that the learned judge could not
have properly held that there was no evidence fit for the consideration
of the jury as to some of the innuendoes averring imputations of
discreditable motives. I am of opinion, therefore, that we could not
direct judgment for the defendants without usurping the functions of the
jury. Neither can we say that the evidence is so slight as to justify us
in ordering a new trial on the ground that the verdict is against the
weight of the evidence.
COZENS-HARDY, L. J. I agree.
SIR GORELL BARNES, PRESIDENT. I have had an opportunity of reading the
judgment of the Master of the Rolls, and I agree with it.
_Appeal dismissed._[521]
JACKSON _v._ HOPPERTON
IN THE COMMON PLEAS, MAY 25, 1864.
_Reported in 12 Weekly Reporter, 913._[522]
This case was tried before Williams, J., at Guildhall, in the sittings
after last Easter Term.
The declaration stated that, “before the speaking, &c., the defendant
had been a man-milliner, and the plaintiff had been in his service and
employ as a saleswoman and assistant, and the defendant falsely, &c.,
spoke, &c., of the plaintiff the words ‘Miss Jackson’ (thereby meaning
the plaintiff) ‘is dishonest,’ thereby meaning that the plaintiff was
a thief and a dishonest servant, and had been guilty of fraudulent
conduct in her capacity as such saleswoman, &c., whereby, &c., the
plaintiff was injured in credit and reputation, and certain persons
trading under the name and style of ‘Capper, Son, & Co.’ refused to
employ the plaintiff as saleswoman and servant in their employ, as
they otherwise would have done, and the plaintiff lost and was
deprived of her said situation in the employ of the said ‘Capper, Son,
& Co.,’ and has been for a long space of time unable to obtain
employment, &c.”
Plea—Not guilty.
The plaintiff entered the defendant’s service on December 1st, 1862,
and remained in his employ till October, 1863, when she left, he
having accused her of taking some money, and a few other things.
Shortly after she left, she returned for her boxes, and asked him for
her wages, and he then accused her of taking £3 10_s._, but said, “if
you had come back, I should have said nothing about it.” A few days
after he paid her her wages. Two or three days after this, she applied
to the Messrs. Capper, Son & Co., for a situation; and she informed
the defendant that a young lady was coming to him for a reference, and
he then said, “I will give you no reference, but if you own that you
took the money I will give you a reference.” The lady from Messrs.
Capper, Son, & Co. called at the defendant’s and asked him for the
plaintiff’s character, when he spoke the words in the declaration, and
said he would not give her a character, she was dishonest, and that he
had money and goods which he could prove she had taken. The plaintiff
did not get the situation, the wages for which were £50 a year and
board. The jury found a verdict for the plaintiff for £60.
_Mr. Chambers_, Q. C. (_Hance_ with him), now moved for a rule calling
on the plaintiff to show cause why this verdict should not be set
aside, and instead thereof a nonsuit entered, on the ground that there
was no evidence of express malice; or for a new trial, on the grounds
that the verdict was against the evidence, and that the damages were
excessive.
ERLE, C. J. I am of opinion that there should be no rule in this case.
This was an action for defamation of character, and evidence was
adduced on the part of the defendant to show that the defamatory words
were uttered on an occasion which justified the use of them. The
question left to the jury was, whether the defendant believed the
imputation of dishonesty, which he made against the plaintiff, was
true or not, and they found he did not believe it to be so, and the
judge is satisfied with their answer. I think this was a necessary
question to be left to them. Then, as to the damages being excessive,
the plaintiff lost a situation for which she would have received £50 a
year, and it cannot be said that £60 is too large a sum as
compensation for that loss. Mr. Chambers also moved on the ground that
it was the judge’s duty to nonsuit the plaintiff at the close of the
plaintiff’s case; but she tried to get another situation, and a lady
called on the defendant for her character, and he then spoke to the
lady the words complained of; where words are spoken on such an
occasion as that, if the person uttering them believe them to be true,
and there be no further evidence to show a probability that they were
spoken maliciously, it is the duty of the judge to nonsuit the
plaintiff. The cases of Taylor _v._ Hawkins, 16 Q. B. 308, and
Somerville _v._ Hawkins, 10 C. B. 583, show what is the law under such
circumstances, and lay down that, if the plaintiff give evidence from
which the jury might infer malice, such as, that the defendant made
the imputations not believing them to be true, or that at the time
when he spoke the words he did not believe he was in the discharge of
a duty, the question of malice ought to be left to the jury; and it
appears from the old cases, and also the two cases above cited, that
defamation carries with it a presumption of malice, and that it is
_prima facie_ evidence of malice, but the occasion on which the
defamatory words are spoken may rebut the _prima facie_ inference of
malice, and then additional evidence may be given to show that there
was malice, and the jury are to find on that evidence and on the libel
itself whether there be malice. In the case of Wright _v._ Woodgate, 2
C. M. & R. 573, it is thus laid down by Parke, B., at p. 577: “The
proper meaning of a privileged communication is only this, that the
occasion on which the communication was made rebuts the inference
_prima facie_ arising from a statement prejudicial to the character of
the plaintiff, and puts it upon him to prove that there was malice; in
fact, that the defendant was actuated by motives of personal spite or
ill-will, independent of the occasion on which the communication was
made. In the present case, it became, in my opinion, incumbent upon
the plaintiff to show malice in fact. This he might have made out,
either from the language of the letter itself, or by extrinsic
evidence, as by proof of the conduct or expressions of the defendant,
showing that he was actuated by a motive of personal ill-will.” And in
Taylor _v._ Hawkins, Lord Campbell lays it down at p. 321 thus: “The
rule is, that, if the occasion be such as repels the presumption of
malice, the communication is privileged, and the plaintiff must then,
if he can, give evidence of malice.” I think that the fact of his
charging her with stealing the £3 10_s._, and, not making that charge
till after she had threatened to leave, and then the fact of his
telling her that if she had come back he should have said nothing
about it, and that if she owned she took it he would give her a
reference, were sufficient facts to justify the jury in inferring that
he was not performing the important duty between man and man, of
stating what he believed to be the plaintiff’s true character, when he
spoke the words which are the subject of this action.
WILLIAMS, WILLES, and BYLES, JJ., concurred.
_Rule refused._[523]
DAVIS _v._ SHEPSTONE
IN THE PRIVY COUNCIL, MARCH 5, 1886.
_Reported in 11 Appeal Cases, 187._
The judgment of their lordships was delivered by
LORD HERSCHELL, L. C.[524] This is an appeal from a judgment of the
Supreme Court of the Colony of Natal refusing a new trial in an action
brought against the appellants in which the respondent obtained a
verdict for £500 damages.
The action was brought to recover damages for alleged libels published
by the appellants in the “Natal Witness” newspaper in the months of
March and May, 1883.
The respondent was, in December, 1882, appointed Resident Commissioner
in Zululand, and proceeded in the discharge of his duties to the Zulu
reserve territory. In the month of March, 1883, the appellants published
in an issue of their newspaper serious allegations with reference to the
conduct of the respondent whilst in the execution of his office in the
reserve territory. They stated that he had not only himself violently
assaulted a Zulu chief, but had set on his native policemen to assault
others. Upon the assumption that these statements were true, they
commented upon his conduct in terms of great severity, observing, “We
have always regarded Mr. Shepstone as a most unfit man to send to
Zululand, if for no other reason than this, that the Zulus entertain
towards him neither respect nor confidence. To these disqualifications
he has now, if our information is correct, added another which is far
more damnatory. Such an act as he has now been guilty of cannot be
passed over, if any kind of friendly relations are to be maintained
between the colony and Zululand. There are difficulties enough in that
direction without need for them to be increased by the headstrong and
almost insane imprudence and want of self-respect of the official who
unworthily represents the government of the Queen.”
In the same issue, under the heading “Zululand,” there appeared a
statement that four messengers had come from Natal to Zululand, from
whom details had been obtained of the respondent’s treatment of certain
chiefs of the reserved territory who had visited Cetewayo, and, what
purported to be the account derived from these messengers of the assault
and abusive language of which the respondent had been guilty, was given
in detail.
On the 16th of May, 1883, the appellants published a further article,
relating to the respondent, which commenced as follows:—“Some time ago
we stated in these columns that Mr. John Shepstone, whilst in Zululand,
had committed a most unprovoked and altogether incomprehensible assault
upon certain Zulu chiefs. At the time the statement was made, a good
deal of doubt was thrown upon the truth of the story. We are now in a
position to make public full details of the affair, which the closest
investigation will prove to be correct. A representative of this
journal, learning that a deputation had come to Natal to complain of the
attack, met five of the number, and in the presence of the competent
interpreters took down the stories of each man.”
The article then gave at length the statements so taken down, which
disclosed, if true, the grossest misconduct on the part of the
respondent. It was in respect of these publications of the appellants
that the action was brought by the respondent.
The appellants by their defence averred that the conduct of the
plaintiff as British Resident Commissioner was a matter of general
public interest affecting the territory of Natal, and that the alleged
libels constituted a fair and accurate report of the information brought
to the Governor of Natal, and published in the colony by messengers from
Zululand and its king as to the conduct of the plaintiff in the
discharge of the duties of his office, and a fair and impartial comment
upon the conduct of the plaintiff in his public capacity published _bona
fide_ and without malice.
The case came on for trial before Mr. Justice Wragg and a jury on the
4th of September, 1883, when it was proved that the allegations of
misconduct made against Mr. Shepstone were absolutely without
foundation, and no attempt was made to support them by evidence. It
appeared that the messengers from whom the statements contained in the
issue in March were derived had come from Zululand to see the Bishop of
Natal, and that their statements had been conveyed to the editor of a
newspaper by a letter from the bishop. The statements contained in the
issue of May were communicated by a Mr. Watson, who was connected with
the staff of the newspaper, and who had sought and obtained an interview
with certain Zulus when on their way to convey a message from the king
to the Governor of Natal.
At the close of the evidence the learned judge summed up the case to the
jury, who returned a verdict for the plaintiff, the present respondent,
for £500.
Application was afterwards made to the Supreme Court to grant a new
trial, but this application was refused, and the present appeal was then
brought. The appellants rested their appeal upon two grounds, first,
that the learned judge misdirected the jury in leaving to them the
question of privilege and in not telling them that the occasion was a
privileged one. The second ground insisted upon was that the damages
were excessive. Their Lordships are of opinion that the contention that
the learned judge ought to have told the jury that the occasion was a
privileged one, and that the plaintiff could only succeed on proof of
express malice, is not well founded.
There is no doubt that the public acts of a public man may lawfully be
made the subject of fair comment or criticism, not only by the press,
but by all members of the public. But the distinction cannot be too
clearly borne in mind between comment or criticism and allegations of
fact, such as that disgraceful acts have been committed, or
discreditable language used. It is one thing to comment upon or
criticise, even with severity, the acknowledged or proved acts of a
public man, and quite another to assert that he has been guilty of
particular acts of misconduct.[525]
In the present case the appellants, in the passages which were
complained of as libellous, charged the respondent, as now appears
without foundation, with having been guilty of specific acts of
misconduct, and then proceeded, on the assumption that the charges were
true, to comment upon his proceedings in language in the highest degree
offensive and injurious; not only so, but they themselves vouched for
the statements by asserting that though some doubt had been thrown upon
the truth of the story, the closest investigation would prove it to be
correct. In their Lordships’ opinion there is no warrant for the
doctrine that defamatory matter thus published is regarded by the law as
the subject of any privilege.
It was insisted by the counsel for the appellants that the publications
were privileged, as being a fair and accurate report of the statements
made by certain messengers from King Cetewayo upon a subject of public
importance. It has, indeed, been held that fair and accurate reports of
proceedings in parliament and in courts of justice are privileged, even
though they contain defamatory matter affecting the character of
individuals.
But in the case of Purcell _v._ Sowler the Court of Appeal expressly
refused to extend the privilege even to the report of a meeting of poor
law guardians, at which accusations of misconduct were made against
their medical officer. And in their Lordships’ opinion it is clear that
it cannot be extended to a report of statements made to the Bishop of
Natal, and by him transmitted to the appellants, or to statements made
to a reporter in the employ of the appellants, who for the purposes of
the newspaper, sought an interview with messengers on their way to lay a
complaint before the governor.
The language used by the learned judge in summing up the present case to
the jury is open to some criticism, and does not contain so clear and
complete an exposition of the law as might be desired. But in their
Lordships’ opinion, so far as it erred, it erred in being too favorable
to the appellants, and it is not open to any complaint on their part.
The only question that remains is as to the amount of damages. The
assessment of these is peculiarly the province of the jury in an action
of libel. The damages in such an action are not limited to the amount of
pecuniary loss which the plaintiff is able to prove. And their Lordships
see no reason for saying that the damages awarded were excessive or for
interfering with the finding of the jury in this respect.
They will, therefore, humbly advise Her Majesty that the judgment
appealed against should be affirmed and the appeal dismissed with costs.