Part 2 — CHAPTER VI DEFAMATION (continued 4)

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.

764The 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, 765really 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 766in 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 767the 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 768when 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]

769

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.

770It 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. 771Therefore 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]

772

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, 773(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 774the 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 775has 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.” 776The 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]

777Lord 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 778than 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 779was 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 780the 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 781would 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.

782

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 783reader, 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 784as 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 300l. 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 300l. 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 785meaning, 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 786of 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 787of 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 788interest 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 789admissible 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.

790Cozens-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.”

791Plea—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 10s., 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. & 792R. 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 10s., 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 793himself 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.

794The 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]

795In 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 796and 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.

797