CRITICISING THE CONDUCT OF PUBLIC MEN. 71.

8 C. & P. 222), or the conduct of a member (Harwood v. Sir J. Astley, L. R. & P. N. R. 47; Wisdom v. Brown, 1 T. L. R. 412; Pankhurst v. Hamilton, 3 T. L. R. 500). The principle was early recognised by Lord Campbell, who traced the development of the right from its inchoate insecurity to its fairly settled condition now. "The full liberty," he says, "of public writers to comment on the conduct and motives of public men has only in recent times been recognised. Comments on Government, on ministers and officers of state, on members of both Houses of Parliament, on judges and other public functionaries, are now made every day which half a century ago would be the subject of actions or ex officio informations, and would have brought down fine and imprisonment on publishers and authors. Yet who can doubt that the public are gainers by the change, and that though injustice may often be done, and though public men may often have to smart under the keen sense of wrong inflicted by hostile criticism, the nation profits by public opinion being thus freely brought to bear on the discharge of public duties?" This privilege does not extend to and protect malicious writing. Parke, B., in Parmiter v. Coupland (6 M. & W. 108), said on this point:-"Every subject has a right to comment on those acts of public men which concern him as a subject of the realm if he does not make his comments a cloak for malice and slander. Seymour v. Butterworth (3 F. & F. 376); Wason v. Walter (L. R. Q. B. 73); Dunne,v. Anderson (3 Bing. S8); Headley v. Barlow (4 F. & F. 224); Henwood v. Harrison (L. R. 7 C. P.), all deal with this aspect of the case. Cockburn, C.J., in Campbell v. Spottiswoode (3 B. & S. 777), while not assenting to the doctrine that the bona fide belief of a writer was any defence, held that where the conduct of a public man is open to ani

madversion, and the writer who is commenting upon it makes imputations on his motives which arise fairly and legitimately out of his conduct, so that the jury shall say that the criticism was not only honest but also well founded, an action is not maintainable. 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. In Paris v. Levy (2 F. & F. 71) Crompton, J. held that the jury were always to be judges if the limits of fair criticism were exceeded, and the rulings in the already oft-cited case of Campbell v. Spottiswoode and in Turnbull v. Bird (2 F. & F. 508) and Lewis v. Levy (E. B. & E.) were that where the matter was of public interest a writer in a newspaper has a right to comment on the subject provided the comment was not stronger than the occasion justified.

Rival editors, politicians, or pamphleteers, can with safety attack and vilify each other as such when they do not outstep the truth or infringe on the domain of private character and conduct (Macleod v. Wakeley, 3 C. & P. 311; Odger v. Mortimer, 28 L. T. 472; Kienig v. Ritchie, 3 F. & F. 413; R. v. Veley, 4 F. & F. 1117; O'Donoghue v. Hussey, Ir.. R. 5 C. L. 124; Dwyer v. Esmonde, 2 Ir. L. R. 243; Murphy v. Halpin, Ir. R. 8 C L. 127; Davis v. Duncan, L. R. 9 C. P. 396). One newspaper may safely charge another with being low and scurrilous, but aliter if it asserts that it is low in circulation for that statement as addressed to persons likely to advertise in that paper may have an injurious effect upon its circulation (Heriot v. Stuart, 1 Esp. 437; Duncombe v. Daniell, 8 C. & P. 222).

As to comments on places of public entertainment, concerts, readings, theatres, &c., the same rule holds, all bona fide criticisms or remarks are protected unless

CRITICISING PUBLIC INSTITUTIONS.

73

they are unjust and malevolent (Dibdin v. Swan, 1 Esp. 28; R. v. Ledger, Times Jan. 80; Green v. Chapman, 4 B. N. C. 92; Morrison v. Belcher, 3 F. & F. 614; Duplany v. Davis, 3 T. L. R. 184; Dallas v. Ledger (see page 13); Merivale v. Carson, 3 T. L. R. 431).

The same rule also applies to tradesmen's advertisements (Paris v. Levy, 30 L. J. C. P. 1) and the prospectuses of public companies.

The working of public institutions, hospitals, asylums, colleges, schools, corporations, infirmaries, workhouses, gaols, and all such as depend upon the public rates or subscriptions, are fair subjects for public criticism, also boards of guardians, the meetings, proceedings and conduct of such, or county councils, or vestries, or grand juries, town commissioners, rural sanitary boards or urban sanitary boards, are all matters of public interest (Purcell v. Sowler, C. P. D. 218, 46 L. J.; Harle v. Catherall, 14 L. T. 801; Shepherd v. Lloyd; Cox v. Feeny, 4 F. & F. 13), but not the trustees of a private corporation (Wilson v. Fitch, 41 Cal. 363; Kelly v. Tinling, L. R. 1 Q. B. 699). Reports of the proceedings of all such bodies are protected under the 3rd section of the Act of 1888.

The distribution of subscribed money and public funds is a very fair and proper subject for newspaper criticism. Thus in the case of Twyman v. Bligh comments were made in a letter from a correspondent in the Kent Coast Times upon meetings held for Jubilee celebrations, and distrust expressed of certain persons. The plea that it was a matter of public interest how a fund subscribed to by the public should be controlled and allocated was pleaded, and the jury so found for the defendant (Queen's Bench Division, Jan. 25, 1888).

CHAPTER VIII.

A FAIR AND ACCURATE REPORT.

SECT. 2 of the Act of 1888 repeals the faulty and defective section of the Act of 1881, which ran thus:-" Any report published in any newspaper of the proceedings of a public meeting shall be privileged if such meeting was lawfully convened for a lawful purpose, and open to the public. . . and if the publication of the matter complained of was for the public benefit." A good deal of doubt at once arose as to what were matters for the "public benefit," and this was given expression to by Lord Bramwell in the case of Ryalls v. Leader (1 L. R. Ex. 296), and the overruling of a wise decision of Mr. Justice Grantham, who held that reporters should not be expected to discriminate in these matters, rendered the Act practically useless in this respect. In the case of Pankhurst v. Sowler (3 T. L. R. 193) its defects came glaringly into prominence. There an action was brought against the proprietor of a paper for reporting a speech in which blasphemy was imputed to the plaintiff. The learned judge had not left it to the jury whether the matter complained of was for the public benefit, and it was held on appeal that this was not under the Judicature Rules "a proper and complete direction"

and a new trial was obtained. Huddleston, B.

remarked, that the Act of 1881 was passed for the purpose of remedying what was considered to be a defect in the law arising out of Purcell v. Sowler, and it provided a protection for true reports of public

KIND OF REPORT THAT IS PROTECTED. 75

meetings published without malice and the publication of which was for the public benefit." It was conceded in the case that the meeting was for a lawful purpose, that the report was fair, and that it had been published without malice, but it was denied that such a report was for the public benefit. In the case of Venables and another v. Fish and others the same question arose the words were admitted to be libellous, the meeting to have been a public one, and the report fair and without malice. Denman, J., in his summing up referred to the previous case of Pankhurst v. Sowler as the only reported one on the question, and left the question to the jury if such report was for the public benefit, and, they holding it was, he entered judgment for the defendants. (See Kelly v. Sherlock, L. R. 1 Q. B. 689; L. J. Q. 35 B. 209; Purcell v. Sowler, 2 C. P. D. 218; Cox v. Feeny, 4 F. & F. 13; Weldon v. Johnson, Times, 27 May, 1884, where the •question was said, by Coleridge, C.J., to be for the jury to decide.)

Sections 3 and 4 of the Act of 1888 deal with reports which are held to be privileged. Under them the report must be "fair and accurate," and the legality of the report is made to depend upon the circumstance as to whether the meeting was open to the public or any newspaper reporter was admitted, the very same principle on which the Criminal Law Commissioners based their recommendations as to the legalising of law reports, with the additional collateral right of the public to be informed of the proceedings that took place. As to the Act giving any extension of the old common law right recognised by the courts, it is very doubtful if the amendments which cut down the privilege do not leave things as they were. The Court of Appeal held nearly a century ago, and it has been