CHAPTER VI. PUBLICATION. PUBLICATION is the communication of the defamatory words to some person or persons other than the person defamed. It is essential to the plaintiff's case that the defendant's words should be expressed; the law permits us to think as badly as we please of our neighbours, so long as we keep our uncharitable thoughts to ourselves. Merely composing a libel is not actionable unless it be published. And in a civil proceeding it is no publication if the words. are only communicated to the person defamed; for that cannot injure his reputation. A man's reputation is the estimate in which others hold him; not the good opinion which he has of himself. The communication, whether it be in words, or by signs, gestures, or caricature, must be intelligible to and understood by some third person. If the words used be in the vernacular of the place of publication, it will be presumed that such third person understood them, until the contrary be proved. And it will be presumed that he understood them in the sense which such words properly bear in their ordinary signification, unless some reason appear for assigning them a different meaning. The publication of a slander involves only one act by the defendant; he must speak the words, so that some third person hears and understands them. But the publication. of a libel is a more composite act. First, the defendant must compose and write the libel; next, he must hand * In Scotland no publication to a third person is necessary. Defamatory statements, either oral or written, concerning the person to whom they are addressed, will found an action for damages at his instance although no third person has heard or read them. Mackay v. M'Cankie, (1883) 10 R. 537 (Ct. of Sess. Cases, 4th Series). what he has written, or cause it to be delivered, to some third person; then that third person must read and understand its contents; or, it may be that, after composing and writing it, the defendant reads it aloud to some third person, who listens to the words and understands them: in this case the same act may be both the uttering of a slander and the publication of a libel. And even when the defendant is not himself the author, writer, or printer of a libel, or in any way connected with or responsible for its being composed or written or printed, still he may be liable as its publisher. But to make him so liable, three things must concur: first, the defendant must receive the libel and read it for himself, or in some other way become aware that it is, or probably may be, a libel; next, he must deliver it to some third person; and then that third person must read it or hear and understand its contents. For in this case, if the defendant can prove that he was wholly ignorant of the contents. of the document, and had no reason to suppose that it was likely to contain libellous matter, he will escape liability, because he has not consciously published a libel. And again, if the person to whom he delivers it never reads it or hears it read, the reputation of the plaintiff is in no way injured by any act of this defendant. Every publication of a libel is a distinct and separate act, and a distinct and separate cause of action. For the defendant always has it in his power to restrict the number of persons to whom he will publish a libel-he may show it or hand it to as many or as few as he pleases; and each time that he chooses to publish it he commits a fresh tort. But the uttering of a slander is one act and one cause of action, whether one person or one hundred persons heard the words. The words are published at once to all who happen to be within earshot, though the defendant may not know how many such there be. If, therefore, the plaintiff has recovered damages for that slander on the footing that, say, three bystanders, A., B., and C., alone heard it, and subsequently he discover that D., E., and F., also heard the same words, he cannot bring a second action for the publication to D., E., and F., for it is the same tort. But if a libel be published first to A. and then to B., two separate actions lie, although the two publications may be part of one transaction; and judgment in an action brought for the publication to A. would be no bar to a second action claiming damages for the publication to B. So, too, if the publication of the libel to A. were privileged, this would afford no defence in the second action, which is based on the publication to B. Whereas, in the case of slander, if it was the defendant's duty to speak when and where he did, his utterance is privileged, however many persons heard his words. (Pittard v. Oliver, (1891) 1 Q. B. 474; 60 L. J. Q. B. 219.) The onus lies on the plaintiff to prove publication; he must prove a publication by the defendant; and such publication must, of course, be prior to the date of the writ. Although husband and wife are generally to be considered one person in actions of tort as well as of contract (Phillips v. Barnet, 1 Q. B. D. 436), still the plaintiff's wife is sufficiently a third person to make a communication to her of words defamatory of her husband a publication in law. (Wenman v. Ash, 13 C. B. 836; 22 L. J. C. P. 190; 1 C. L. R. 592; 17 Jur. 579; Jones v. Williams, (1885) 1 Times L. R. 572.) And it is submitted that similarly a communication to the husband of a charge against his wife is a sufficient publication. The doubt suggested by Jervis, C.J., in Wenman v. Ash must mean that he considered a communication to the husband of a report prejudicial to his wife was primâ facie privileged as being a friendly act; not that it was no publication. To communicate to a wife a charge or complaint against her husband is not a friendly act, and is not privileged. (Jones v. Williams, suprà.) In the converse case of the defendant and his wife a different rule prevails. Communications between husband and wife are "held sacred." (Per Manisty, J., 20 Q. B. D. at p. 639.) They are clearly privileged. In cases apart from the Married Women's Property Acts, there is in law no publication where the words merely pass between husband and wife. (Wennhak v. Morgan, 20 Q. B. D. 635; 57 L. J. Q. B. 241; 36 W. R. 697; 59 L. T. 28; 52 J. P. 470; citing with approval an American case of Trumbull v. Gibbons, 3 City Hall Recorder, 97.) Moreover, the fact that defendant's wife was present on a privileged occasion, and heard what her husband said, will not take away the privilege, so long as her presence, though not necessary, was not improper. (Jones v. Thomas, 34 W. R. 104; 53 L. T. 678; 50 J. P. 149; Collins v. Cooper, (1902) 19 Times L. R. 118.) And see post, p. 281. Illustrations. To shout defamatory words on a desert moor where no one can hear you, is not a publication; but if anyone chances to hear you, it is a publication, although you thought no one was by. To utter defamatory words in a foreign language is not a publication, if no one present understands their meaning; but if defamatory words be written in a foreign language, there will be a publication as soon as ever the writing comes into the hands of anyone who does understand that language, or who gets them explained or translated to him. If defamatory words be spoken in English when the only person present besides the plaintiff is a German who does not understand English, this is no publication. Hurtert v. Weines, 27 Iowa, 134. Sending a letter through the post to the plaintiff, properly addressed to him, and fastened in the usual way, is no publication, and the defendant is not answerable for anything the plaintiff may choose to do with the letter after it has once safely reached his hands. Barrow v. Lewellin, Hob. 62. In an American case the plaintiff, after so receiving a libellous letter from the defendant, sent for a friend of his and also for the defendant; he then repeated the contents of the letter in their presence, and asked the defendant if he wrote that letter; the defendant, in the presence of the plaintiff's friend, admitted that he had written it. Held, no publication by the defendunt to the plaintiff's friend. Fonville v. Nease, Dudley, S. C. 303 (American). But it is otherwise if a message be sent to the plaintiff by telegraph; the contents of the telegram are necessarily communicated to all the clerks through whose hands it passes. Whitfield and others v. S. E. Ry. Co., E. B. & E. 115; 27 L. J. Q. B. 229; 4 Jur. N. S. 688. Williamson v. Freer, L. R. 9 C. P. 393; 43 L. J. C. P. 161; 22 W. R. 878; 30 L. T. 332. Robinson v. Jones, 4 L. R. Ir. 391. Smith v. Crocker, (1889) 5 Times L. R. 441. Robinson v. Robinson, (1897) 13 Times L. R. 564. If the defendant writes libellous words on a postcard and posts it, publication to a third person will be presumed. It will be for the defendant to show that in fact no one but the plaintiff read it. Chattell v. Turner, (1896) 12 Times L. R. 360. Beamish v. Dairy Supply Co., Limited, (1897) 13 Times L. R. 484. Sadgrove v. Hole, (1901) 2 K. B. 1; 70 L. J. K. B. 455; 49 W. R. 473; 84 L. T. 647. Merely to be in possession of a copy of a libel is no crime, unless some publication thereof ensue. R. v. Beere, Carth. 409; 12 Mod. 219; Holt, 422; 2 Salk. 417, 646; 1 Ld. Raym. 414. And see 11 Hargrave's St. Tr. 322, sub. Entick v. Carrington, and John Lamb's Case, 9 Rep. 60, post, p. 158. But the delivery of a manuscript to a printer to be printed is a sufficient publication if any copies be printed; even though the author repent and suppress all the copies printed. For the compositor must read it or hear it read. Baldwin v. Elphinston, 2 W. Bl. 1037. [This may be considered a somewhat harsh decision, as the compositor does not attend to the substance of the manuscript, but sets it up in type mechanically; but it has recently been acted on in America.] Trumbull v. Gibbons, 3 City Hall Recorder, 97. And see Watts v. Fraser and another, 7 Ad. & E. 223; 6 L. J. K. B. 226; 7 C. & P. 369; 1 M. & Rob. 449; 2 N. & P. 157; 1 Jur. 671; W. W. & D. 451.] Sending a libellous letter or speaking defamatory words to the plaintiff's agent or solicitor is a sufficient publication to a third person. Tuson v. Evans, 12 A. & E. 733. Huntley v. Ward, 1 F. & F. 552; 6 C. B. N. S. 514; 6Jur. N. S. 18. Stevens v. Kitchener, (1887) 4 Times L. R. 159. Where the defendant wrote a letter to the plaintiff himself, but read it to a friend before posting it, this was held a publication to the friend. Snyder v. Andrews, 6 Barbour (New York), 43. McCombs v. Tuttle, 5 Blackford (Indiana), 431. So where the defendant, before posting the letter to the plaintiff, had it copied. Held, a publication by the defendant to his own clerk who copied it. Keene v. Ruff, 1 Clarke (Iowa), 482. The managing director of the defendant company dictated a letter, containing words defamatory of the plaintiffs, to a shorthand clerk, who transcribed it by a type-writing machine. This type-written letter was then signed by the managing director, and having been press-copied by the office boy, was sent direct to the plaintiff's office. This was held by the Court of Appeal to be a publication both to the type-writer and the office boy. Pullman and another v. Hill & Co., (1891) 1 Q. B. 524; 60 L. J. Q. B. 299; 39 W. R. 263; 64 L. T. 691. I have, of course, cited the decision of the Court of Appeal in Pullman and another v. Hill & Co. as a binding authority. But, with all respect to the learned judges, I venture to suggest a doubt as to the correctness of their decision on this portion of the case. Dictating to a shorthand clerk words which that shorthand clerk takes down in writing is not publishing a libel to the shorthand clerk. No libel is yet in existence. Such dictation may be an actionable slander-indeed, in Pullman and another v. Hill & Co. it was so; but the fact that spoken words are intended to be |