contempt or ridicule. In one of the leading cases, for example,
the plaintiff obtained damages because it was said of him that
he was a hypocrite, and had used the cloak of religion for unworthy
purposes. In another case a charge of ingratitude
was held sufficient. In civil cases the libel must be published
by being brought by the defendant under the notice of a third
party; it has been held that it is sufficient if this has been done
by gross carelessness, without deliberate intention to publish.
Every person is liable to an action who is concerned in the
publication of a libel, whether he be the author, printer or
publisher; and the extent and manner of the publication,
although not affecting the ground of the action, is a material
element in estimating the damages.
It is not necessary that the defamatory character of the words or writing complained of should be apparent on their face. They may be couched in the form of an insinuation, or may derive their sting from a reference to circumstances understood by the persons to whom they are addressed. In such a case the plaintiff must make the injurious sense clear by an averment called an innuendo, and it is for the jury to say whether the words bore the meaning thus ascribed to them.
In all civil actions for slander and libel the falsity of the injurious statements is an essential element, so that the defendant is always entitled to justify his statements by their truth; but when the statements are in themselves defamatory, their falsity is presumed, and the burden of proving their truth is laid upon the defendant. There are however a large class of false defamatory statements, commonly called privileged, which are not actionable on account of the particular circumstances in which they are made. The general theory of law with regard to these cases is this. It is assumed that in every case of defamation intention is a necessary element; but in the ordinary case, when a statement is false and defamatory, the law presumes that it has been made or published with an evil intent, and will not allow this presumption to be rebutted by evidence or submitted as matter of fact to a jury. But there are certain circumstances in which the natural presumption is quite the other way. There are certain natural and proper occasions on which statements may be made which are in themselves defamatory, and which may be false, but which naturally suggest that the statements may have been made from a perfectly proper motive and with entire belief in their truth. In the cases of this kind which are recognized by law, the presumption is reversed. It lies with the plaintiff to show that the defendant was actuated by what is called express malice, by an intention to do harm, and in this case the question is not one of legal inference for the court, but a matter of fact to be decided by the jury. Although, however, the theory of the law seems to rest entirely upon natural presumption of intention, it is pretty clear that in determining the limits of privilege the courts have been almost wholly guided by considerations of public or general expediency.
In some cases the privilege is absolute, so that we cannot have an action for defamation even although we prove express malice. Thus no action of this kind can be maintained for statements made in judicial proceedings if they are in any sense relevant to the matter in hand. In the same way no statements or publications are actionable which are made in the ordinary course of parliamentary proceedings. Papers published under the authority of parliament are protected by a special act, 3 & 4 Vict. c. 9, 1840, which was passed after a decree of the law courts adverse to the privilege claimed. The reports of judicial and parliamentary proceedings stand in a somewhat different position, which has only been attained after a long and interesting conflict. The general rule now is that all reports of parliamentary or judicial proceedings are privileged in so far as they are honest and impartial. Even ex parte proceedings, in so far as they take place in public, now fall within the same rule. But if the report is garbled, or if part of it only is published, the party who is injured in consequence is entitled to maintain an action, and to have the question of malice submitted to a jury.
Both absolute and qualified privilege are given to newspaper reports under certain conditions by the Law of Libel Amendment Act 1888. The reports must, however, be published in a newspaper as defined in the Newspaper Libel and Registration Act 1881. Under this act a newspaper must be published “at intervals not exceeding twenty-six days.”
By s. 3 of the act of 1888 fair and accurate reports of judicial proceedings are absolutely privileged provided that the report is published contemporaneously with the proceedings and no blasphemous or indecent matter is contained therein. By s. 4 a limited privilege is given to fair and accurate reports (1) of the proceedings of a bona fide public meeting lawfully held for a lawful purpose and for the furtherance and discussion of any matter of public concern, even when the admission thereto is restricted; (2) of any meeting, open either to the public or to a reporter, of a vestry, town council, school board, board of guardians, board of local authority, formed or constituted under the provisions of any act of parliament, or of any committee appointed by any of these bodies; or of any meeting of any commissioners authorized to act by letters patent, act of parliament, warrant under royal sign manual, or other lawful warrant or authority, select committees of either House of parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes; (3) of the publication of any notice or report issued for the information of the public by any government office or department, officer of state, commissioner of police or chief constable, and published at their request. But the privilege given in s. 4 does not authorize the publication of any blasphemous or indecent matter; nor is the protection available as a defence if it be proved that the reports or notices were published maliciously, in the legal sense of the word, or the defendant has been requested to insert in the newspaper in which the report was issued a reasonable letter or statement by way of contradiction or explanation, and has refused or neglected to do so. Moreover, nothing in s. 4 is to interfere with any privilege then existing, or to protect the publication of any matter not of public concern, or in cases where publication is not for the public benefit. Consequently no criminal prosecution should be commenced where the interests of the public are not affected. By the Law of Libel Amendment Act 1888, s. 8, no criminal prosecution for libel is to be commenced against any newspaper proprietor, publisher or editor unless the order of a judge at chambers has been first obtained. This protection does not cover the actual writer of the alleged libel.
In private life a large number of statements are privileged so long as they remain matters of strictly private communication. It is difficult to define the limits of private privilege without extensive reference to concrete cases; but generally it may be said that it includes all communications made in performance of a duty not merely legal but moral or social, answers to bona fide inquiries, communications made by persons in confidential relations regarding matters in which one or both are interested, and even statements made within proper limits by persons in the bona fide prosecution of their own interest. Common examples of this kind of privilege are to be found in answer to inquiries as to the character of servants or the solvency of a trader, warnings to a friend, communications between persons who are jointly interested in some matters of business. But in every case care must be taken not to exceed the limits of publication required by the occasion, or otherwise the privilege is lost. Thus defamatory statements may be privileged when made to a meeting of shareholders, but not when published to others who have no immediate concern in the business.
In a few instances in which an action cannot be maintained even by the averment of malice, the plaintiff may maintain an action by averring not only malice but also want of reasonable and probable cause. The most common instances of this kind are malicious charges made in the ordinary course of justice and malicious prosecutions. In such cases it would be contrary to public policy to punish or prevent every charge which was made from a purely malicious motive, but there is no reason for protecting accusations which are not only malicious, but destitute of all reasonable probability.
Criminal Law.—Publications which are blasphemous, immoral or seditious are frequently termed libels, and are punishable both at common law and by various statutes. The matter, however, which constitutes the offence in these publications lies beyond our present scope. Libels upon individuals may be prosecuted by criminal information or indictment, but there can be no criminal prosecution for slander. So far as concerns the definition of libel, and its limitation by the necessity of proving in certain cases express malice, there is no substantial difference between the rules which apply to criminal prosecutions and to
