It has often been said by learned judges that fair and honest criticism on matters of public concern is privileged. See especially the judgments in Henwood v. Harrison, L. R. 7 C. P. 606; 41 L. J. C. P. 206; 20 W. R. 1000; 26 L. T. 938. But this does not mean that such words are published on a "privileged occasion" in the strict legal sense of that term. The defence really is, that the words are not defamatory, that such criticism is no libel or slander (Campbell v. Spottiswoode, 3 B. & S. 769; 32 L. J. Q. B. 185; Merivale and wife v. Carson, 20 Q. B. D. 275; 36 W. R. 231; 58 L. T. 331). As Lord Esher, M.R., says in the latter case (at p. 280): “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." And see the judgment of Collins, M.R., in McQuire v. Western Morning News Co., (1903) 2 K. B. pp. 111, 112.

Comment and criticism on matters of public interest stand therefore on a different footing from reports of judicial or parliamentary proceedings. Such reports are privileged so long as they are fair and accurate reports and nothing more. No attempt at comment should be introduced into the report; if it is, no privilege attaches to the comment. In short, report and comment are two distinct and separate things. A report is the mechanical reproduction, more or less condensed or abridged, of what actually took place; comment is the judgment passed on the circumstances reported, by one who has applied his mind to them. Fair reports are privileged, while fair comments, if on matters of public interest, are no libels at all.

Illustrations.

Condemnation of the foreign policy of the Government, however sweeping, is no libel.

Animadversions, however severe, on the use made by the vestry of the money of the ratepayers, is not libellous, unless corruption or embezzlement be imputed to individual vestrymen.

Criticism, however trenchant, on any new poem or novel, or on any picture exhibited in a public gallery, is no libel.

But to maliciously intrude into the private life of any poet, novelist, artist, or statesman, and to attack his character, apart from his work, is actionable.

Criticism.

True criticism differs from defamation in the following particulars:

1. Criticism deals only with such things as invite public attention, or call for public comment. It does not follow a public man into his private life, or pry into his domestic

concerns.

2. Criticism never attacks the individual but only his work. Such work may be either the policy of a government, the speech or action of a member of Parliament, a public entertainment, a book published, or a picture exhibited. In every case the attack is on a man's acts, or on some thing, and not upon the man himself. A true critic never indulges in personalities, or recklessly imputes dishonourable motives, but confines himself to the merits of the subject-matter before him.

3. The critic never takes advantage of the occasion to gratify private malice, or to attain any other object beyond the fair discussion of matters of public interest, and the judicious guidance of the public taste. He will carefully examine the production before him, and then honestly and fearlessly state his true opinion of it.

Every one has a right to publish such fair and candid criticism. "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. . . 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 . . . Reflection upon personal character is another thing. Show me an attack upon the moral character of the plaintiff, or any attack upon his character unconnected with his authorship, and I should 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 . . . 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." (Per Lord Ellenborough in the celebrated case of Sir John Carr v. Hood, 1 Camp. at pp. 357, 358, n.) So in Tabart v. Tipper, 1 Camp. 351, the same learned judge says: "Liberty of criticism must be allowed, or we should neither have purity of taste nor of morals. Fair discussion is essentially necessary to the truth of history and the advancement of science. That publication, therefore, I shall never consider as a libel, which has for its object, not to injure the reputation of any individual, but to correct the misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality." "A critic must confine himself to criticism, and not make it the veil for personal censure, nor allow himself to run into reckless and unfair attacks merely from the love of exercising his power of denunciation." (Per Huddleston, B., in Whistler v. Ruskin, Times, Nov. 27th, 1878.)

It is then a defence to an action of libel or slander that the words complained of are a fair comment on a matter of public interest. But this defence will fail, unless the words. complained of are:

(i) A comment, and not the assertion of some alleged matter of fact;

(ii) A comment on some matter of public interest; (iii) A fair and honest comment.

Whether the matter commented on is or is not a matter of public interest is a question for the judge. (Dakhyl v. Labouchere, Times, July 29th, 1904. See post, p. 195.) All other questions are for the jury. The onus of proving that the words are a comment and that they are a comment on a matter of public interest lies on the defendant. The onus of proving that the comment is unfair or dishonest lies on the plaintiff. If the judge thinks that there is no evidence on which a rational verdict could be found to the effect that the comment is unfair or dishonest, he should stop the case. (Per Willes, J., in Henwood v. Harrison, L. R. 7 C. P. p. 628, and Collins, M.R., in McQuire v. Western Morning News Co., (1903) 2 K. B. pp. 112, 113.)

There is no libel "unless the criticism exceeded the bounds of fair comment . It is always for the judge to say whether the

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document is capable in law of being a libel. It is, however, for the plaintiff, who rests his claim upon a document which on his own statement purports to be a criticism of a matter of public interest, to show that it is a libel, i.e., that it travels beyond the limit of fair criticism; and therefore it must be for the judge to say whether it is reasonably capable of being so interpreted. If it is not, there is no question for the jury, and it would be competent for him to give judgment for the defendant . . . . In my opinion, there is in this case, in the language of Willes, J., above cited, no evidence on which a rational verdict for the plaintiff can be founded, and the defendants are therefore entitled to have judgment entered for them." (Per Collins, M.R., ib. pp. 108, 111, 112.) But if the words are reasonably capable of being construed as unfair it is for the jury to determine whether they were or were not a fair comment. (Cooney v. Edereain, (1897) 14 Times L. R. 34.)

(i) Comment, not Allegation of Fact.

A comment, as I have already stated, is the expression of the judgment passed upon certain alleged facts by one who has applied his mind to them; and who while so commenting, assumes that such allegations of fact are true. The assertion of a fact is not a comment at all. If the words complained of contain allegations of fact which are denied by the plaintiff, and which the defendant cannot prove to be true, there must be a verdict for the plaintiff. It is of no avail for the defendant to urge that he honestly believed them to be true. (Campbell v. Spottiswoode, 3 B. & S. 769; 32 L. J. Q. B. 185.)

Comment on well-known or admitted facts is a very different thing from the assertion of unsubstantiated facts for comment. "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." (Per cur. in Davis and Sons v. Shepstone, 11 App. Cas. at p. 190; 55 L. J. P. C. 51.)

"It was contended, that this libel might be justified as a matter of public discussion on a subject of public interest. The answer is:-This is not a discussion or comment. It is the statement of a fact. To charge a man incorrectly with a disgraceful act, is very different from commenting on a fact relating to him truly stated,—there, the writer may by his opinion, libel himself rather than the subject of his remarks." (Per Wilde, B., in Popham v. Pickburn, 7 H.

& N. at p. 898.) "That a fair and bonâ fide comment on a matter of public interest is an excuse of what would otherwise be a defamatory publication is admitted. The very statement, however, of this rule assumes the matters of fact commented upon to be somehow or other ascertained. It does not mean that a man may invent facts, and comment on the facts so invented in what would be a fair and bond fide manner on the supposition that the facts were true. . . If the facts as a comment upon which the publication is sought to be excused do not exist, the foundation of the plea fails." (Lefroy v. Burnside (No. 2), 4 L. R. Ir., at pp. 565, 566; Blair v. Cox, 37 Sol. J. 130.)

It is not enough that the writer honestly believed the facts to be as he alleged. (Campbell v. Spottiswoode, 3 B. & S. 769; 32 L. J. Q. B. 185; Peters v. Bradlaugh, (1888) 4 Times L. R. 467.) Immaterial errors as to details will be excused. "It is not to be expected that a public journalist will always be infallible." (Per Cockburn, C.J., 4 F. & F. 217.) But a libellous statement of fact is not a comment or criticism on anything. (Per Field, J., in R. v. Flowers, 44 J. P. 377.) The facts on which the comments are founded must be proved substantially as stated by the writer. "A comment cannot be fair which is built upon facts which are not truly stated." (Per Kennedy, J., in Joynt v. Cycle Trade Publishing Co., (1904) 2 K. B. at p. 294.)