The New International Encyclopædia/Libel (common law)

LIBEL. A term of the common law, descriptive of that species of defamation (q.v.) which is committed by writing or its equivalent. It is a criminal offense as well as a civil wrong. It consists of the publication of that which tends to bring another into hatred, contempt, or ridicule. Special damage to its victim need not be shown. Nor is the truth of a libelous publication always a defense. Many of our State constitutions declare that it is not a defense to a criminal prosecution, unless published with good motives and for justifiable ends. Fair reports of legislative debates, judicial proceedings, and similar transactions do not subject their publishers to action for libel. Various other immunities are accorded to news-gatherers and publishers by modern statutes. These should be examined in each jurisdiction.

A defamatory writing will not subject its author to an action, either civil or criminal, until it is published. For the purposes of a criminal prosecution, it is published as soon as any one knowingly exposes it to the sight of another, who is capable of understanding it. Accordingly, the writer of a defamatory article may be liable criminally, when he sends it in a sealed envelope to the one defamed. To render him liable in a civil action for damages, however, the writing must have been communicated to a third person; save in a few States, where the rule has been changed by statute. Such communication need not have been intentional. One who sends the writing to a third person by mistake may inflict as great an injury upon the victim of his defamation as though he had planned the injury. Nor can the publisher of a libel screen himself from civil responsibility by saying that it was a joke. In the language of a great judge, “No one can cast about firebrands and death, and then escape from being responsible by saying he was in sport.”

A century and a half ago the weight of judicial authority favored the rule that the defamatory character of a publication was a question for the court and not for the jury. Mansfield's enforcement of this rule elicited the most violent criticism, and led to the enactment of a statute known as Fox's Libel Act (32 Geo. III., c. 60). “Although this statute only applies to criminal proceedings, it has been followed by analogy in civil actions for libel, and no plaintiff is entitled to succeed either in England or in the United States, unless the jury find that the publication is libelous. In a civil action, if the judge is of the opinion that the publication complained of is not defamatory, he may direct that the plaintiff be non-suited. Consult: Odgers, A Digest of the Law of Libel and Slander (3d ed., London, 1896); Newell, The Law of Libel and Slander in Civil and Criminal Cases (2d ed., Chicago, 1898); Townshend, Treatise on the Wrongs Called Slander and Libel (4th ed., New York, 1890); Pollock, The Law of Torts (6th ed., New York and London, 1901); Bigelow, The Law of Torts (7th ed., Boston, 1901). See also the articles Defamation; Slander; Tort.