THE LAW OF

NEWSPAPER LIBEL.

CHAPTER I.

WHAT IS A LIBEL ?-THE SEVERAL KINDS OF LIBEL

REMEDIES-GENERAL

REMARKS UPON SOME

CASES, AND UPON MALICE AND PRIVILEGE.

LEADING

"IT has been stated as a great defect that there is no law defining a libel or expounding what shall be considered libellous. In no code, either formed by successive acts of legislation or composed at once by speculative lawgivers, was ever such a definition attempted. The attempt would in truth be vain; the nature of the thing precludes all minute definition." Thus wrote an eminent jurist. Libel therefore has not been statutably defined, and the law as it stands is the growth and outcome of judicial decisions"the problem ever suggesting itself and calling for solution being to find the quantity of liberty and the species of restraint which will secure to the Press the greatest amount of free discussion consistent with the tranquillity of the community and the safety of private character." Lord Brougham further adds a description I may well adopt :-" According to the principles now recognised, libel consists in publishing a written, printed, or painted composition tending to disturb the public peace by vilifying the Government or other

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wise exciting the subjects to revolt,-which may be termed a public or seditious libel, or by traducing private character, which is commonly termed a private libel. The former class has mainly an historic interest in these countries, the Government coming to recognise with Cromwell that it is not worth preserving if it cannot stand against paper shot.' No just and lawful state seeks to hamper its press, as it trusts to truth and sense to prevail, as they always do."

A libeller, if proceeded against criminally, may be put on his trial by ex officio information on motion of the Crown officers, or by indictment at the suit of the injured person. The tendency of recent decisions is to force recourse for redress to be had to an action for damages by civil suit unless in extreme cases, for the theory of a prosecution is that the libel tends to endanger the public peace (per Coleridge, C.J., in Lonsdale v. Yates, 3 T. L. R. 193). A criminal libel is punishable by fine and imprisonment. Formerly the pillory was imposed, and before the Revolution heavy fines and long imprisonments, but in recent times never more than a year or two, according to the gravity of the offence, can be given (see Seditious Libels, infra).

The civil remedy is however what chiefly concerns the public, and this may be sought by the aggrieved party for anything defamatory published about him, whether written, printed, or spoken, within certain limitations. As remarked, there is no exact legal definition of the offence of libel, and its meaning must therefore be found by the jury, in every case according to the circumstances of that case. A jury are the sole and proper arbiters. Still there have been very able expositions of the law from the Bench, and a most explicit and satisfactory one is that of Black

LIBEL-GENERALLY CONSIDERED.

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burn, L.J., in the case of the Capital & Counties Bank v. Henty (7 App. Cas. 741), who therein clearly describes what is a libel: "It is," says he, "a written statement published without lawful justification or excuse, calculated to convey to those to whom it is published an imputation on the plaintiffs injurious to them in their trade, or holding them up to hatred, contempt, or ridicule. Circumstances point and give effect to the statement, and the manner of publication and the things relative to which the words are published, and which the person publishing knew or ought to have known, would influence those to whom it was published in putting a meaning on the words, are all material in determining whether the writing is calculated to convey a libellous imputation or not."

Parke, B., in Parmiter v. Coupland (6 M. & W. 105) gave a definition of libel which is often referred to, describing it as "a publication without justification or lawful excuse which is calculated to injure the reputation of another by exposing him to hatred, contempt or ridicule." And in R. v. Holbrook Cockburn, C.J., stated that " a person libelled may pursue his remedy for damages or prefer an indictment, or by leave of the Crown a criminal information, or he may sue for damages and indict" (14 Cox's C. C.).

It has been held that to constitute the offence the libel must be falsely and maliciously published. The very terms of the averment in an indictment plead such, in these words or others to the like effect," that the defendant falsely and maliciously published of A. B. a false, malicious, and defamatory libel," and the averment in an ordinary civil action is usually set out thus, "that the defendant falsely and maliciously published of, and concerning the plaintiff, the words, &c." "Malice," which the old jurists called, the animus

injuriandi, and which constitutes the gist and gravamen of the offence of libel, as will be seen further on, has been the subject of many authoritative definitions. Probably that of Bayley, J., in Bromage v. Prosser (4 B. & C. 247) is the best known. He describes "malice" as "meaning in common acceptation illwill against a person, but in its legal sense as a wrongful act done intentionally without just cause or excuse." Every libel is held to be published maliciously unless justified or privileged, and further on will be mentioned the circumstances and conditions which impart to it immunity. Generally it may be said that defamatory matter is privileged when honestly communicated in answer to inquiries, or when affording information to those who have an interest in the information; or when it is made in a court of justice, in Parliament, or in any other privileged place. A newspaper report is absolutely privileged when it is a faithful representation and a substantially correct account of what occurred in a court of justice or at a public meeting held for a lawful purpose, and upon a matter of public interest (sects. 3 and 4, Act 1888). And a comment is privileged when upon a subject the writer has a right as a public citizen to comment upon (see infra). It must be remembered that a writer qua writer has no greater right or any higher privilege under this head than an ordinary citizen.

To give a complete classification of what is judicially held to constitute a libel amid all the varied circumstances of public life is, needless to say, impossible, but a few characteristic instances will best illustrate it. Thus, a corporation may libel or be libelled (Metropolitan Omnibus Co. v. Hawkins 28 L. J. Ex. 20, 4 H. & N. 87), or trustees may be libelled, and, if so,

SOME INSTANCES OF LIBEL.

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they may bring a joint action (Booth v. Briscoe, 2 Q. B. D. 496; Manchester & Sheffield Railway Co. v. Brooks, 2 Ex. Div. 243; Appleton v. Chapelizod Paper Co., 45 L. J. Ch. 276), or a religious community may be libelled (R. v. Gathercole, 2 Lewin's Crown Cases, 237), or even a dead man, if with intent to bring the living into contempt (R. v. Topham, 4 T. R. 1791; R. v. Ensor, 3 T. L. R. 367). The words must in their nature be defamatory (Sheahan v. Ahearne (9 Ir. R. C. L. 45, reviewing a decision in Kelly v. Partington, 5 B. & Ald. 645). Since Fox's Act (32 Geo. 3, c. 9) the ultimate decision on the point whether the matter complained of is a libel or not is not a matter of law. In Maitland v. Bramwell (2 F. & F. 623) even the bona fides of a defendant was left to the jury, and in Eastwood v. Holmes (1 F. & F. 347) they were asked to decide if there was express malice. In Chalmers v. Payne (3 T. R. 428) the judge left it to the jury to decide if the report was injurious to the plaintiff as averred. These are but a few illustrative cases in point out of a long line of decisions from Fox's Act in 1792, when the jury first became the judges of the libel, in fact the censors of the press and guardians of the public liberties. As seen in R. v. Francklin (17 State Trials, 667) before that time juries had only to decide on the mere fact of publication. As to the intention of a party who commits the offence, the presumption is that he knew and meant to do what he did, and the only defence can be justification or privilege. In Littledale v. Earl of Lonsdale (2 H. Bl.) it was held that a party was not justified in committing an act injurious to another because he did not intend to do an injury, "for where words are used and no justifiable cause is shown the law rightly presumes the existence of malice." The