506 LIBEL
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, and it has even been held that it is sufficient if this has been clone 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 the course of 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, 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 some what 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. Comments on subjects of public interest, on the proceedings of courts or public bodies, on publications, exhibitions, and on persons who have in any way chosen to invite the public attention, fall within a similar rule. The public interest demands that on all these subjects a fair latitude for discussion should be permitted; the critic is entitled to the utmost liberty so long as he expresses nothing more than his honest opinion of the subject before him, but if it can be proved that he has used false and defamatory language out of malice, and especially if he has travelled beyond the facts which are properly before the public, he is no longer protected by his privilege. 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 which are 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 we must be careful 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 civil actions, with the one important exception (now considerably modified) that the falsity of a libel is not in criminal law an essential element of the offence. If the matter alleged were in itself defamatory, the court would not permit inquiry into its truth. The sweeping application of this rule seems chiefly due to the indiscriminate use, in earlier cases, of a rule in Roman law which was only applicable to certain modes of publication, but has been supported by various reasons of general policy, and especially by the
