CHAPTER IX.

PRIVILEGE-ABSOLUTE PRIVILEGE.

It is a defence to an action of libel or slander to prove that the circumstances under which the defamatory words were written or spoken were such as to make it right that the defendant should plainly state what he honestly believed to be the plaintiff's character, and speak his mind fully and freely concerning him. In such a case, the occasion is said to be privileged, and though the statement may at the trial be proved or admitted to be erroneous, still its publication on such privileged occasion is excused for the sake of common convenience, and in the interests of society at large.

Privileged occasions are of two kinds :

(i) Those absolutely privileged.

(ii) Those in which the privilege is but qualified.

In the first class of cases it is so much to the public interest that the defendant should speak out his mind fully and fearlessly, that all actions in respect of words spoken thereon are absolutely forbidden, even though it be alleged that the words were spoken falsely, knowingly, and with express malice. This is confined to cases where the public service, or the due administration of justice, requires complete immunity, e.g., words spoken in Parliament; everything said by a judge on the bench, or a witness in the box; reports of military officers on military matters to their military superiors. In all such cases the privilege afforded by the occasion is an absolute bar to any action.

In less important matters, however, the interests of the public do not demand that the speaker should be freed from

all responsibility, but merely require that he should be protected so far as he is speaking honestly for the common good; in these cases the privilege is said not to be absolute but qualified only. In such cases the plaintiff will recover damages in spite of the privilege, if he can prove that the defendant in using the defamatory words was not acting in good faith, but was actuated by some improper motive. Such improper motive is called "malice."

Illustrations.

Anyone who is called as a witness, and is sworn to speak the truth, the whole truth, and nothing but the truth, may do so without fear of any legal liability, even though he be thus compelled to defame his neighbour.

This is so even where a witness in the box volunteers a defamatory remark, quite irrelevant to the cause in which he is sworn, with a view of gratifying his own vanity, and of injuring the professional reputation of another; the words are still absolutely privileged; for they were spoken in the box.

Seaman v. Netherclift, 1 C. P. D. 540; 45 L. J. C. P. 798; 24 W. R. 884; 34 L. T. 878; 2 C. P. D. 53; 46 L. J. C. P. 128; 25 W. R. 159; 35 L. T. 784.

Anyone who is asked as to the character of a former servant by one to whom the servant has applied for a situation, may state in reply all he knows about the servant without being liable to an action, provided he does so truthfully and honestly to the best of his ability.

But if he maliciously gives a good servant a bad character in order to prevent her "bettering herself," and so to compel her to return to his own service, the case is thereby taken out of the privilege, and the servant will recover damages. Jackson v. Hopperton, 16 C. B. N. S. 829; 12 W. R. 913; 10 L. T.

529.

In Roman law an intention to injure the plaintiff was essential to the action for injuria. (D. 47. 10. 3, 3 & 4.) Hence, they never presumed malice; the plaintiff had to prove that the defendant expressly intended to impair his good name. Thus, if an astrologer or soothsayer, in the bonâ fide practice of his art, denounces A. as a thief when he is an honest man, A. has no action; for the astrologer only committed an honest mistake. But it would be otherwise if the soothsayer did not really believe in his art, but from motives of private enmity pretended, after some jugglery, to arrive at A.'s name. (D. 47. 10. 15. 13.) That being so, it was unnecessary for the Romans to have any law as to qualified privilege; unless there was some evidence of malice the plaintiff failed in every case. But neither did they allow any absolute privilege; on express malice proved the plaintiff recovered. Even the fact that the libel was

contained in a petition sent to the Emperor was no protection. (D. 47. 10. 15. 29.) If a prefect or other official in the course of his duty charged a man with crime, he was not liable to an action if he did so. in the belief that the charge was true, and without any malicious intention of publicly defaming the man ; but if, in a sudden quarrel, he made the charge in the heat of the moment, and without any ground for the accusation, then he would be liable to an action when his term of office had expired, unless the Statute of Limitations would help him. (Rescript to Victorinus, A.D. 290; Krueger's Codex, ed. 1877, p. 855.) Two adversaries in litigation were of course allowed great latitude; a certain amount of mutual defamation being essential to the conduct of the case, and so not malicious: but even here moderation had to be observed. (Pauli Sent. V. iv. 15.) The Roman plan had at least the merit of simplicity.

Whether the communication is, or is not, privileged by reason of the occasion, is a question for the judge alone, where there is no dispute as to the circumstances under which it was made. (Stace v. Griffith, L. R. 2 P. C. 420; 6 Moore, P. C. C. N. S. 18; 20 L. T. 197.) If there be any doubt as to these circumstances, the jury must find what the circumstances in fact were, or appeared to the defendant to be; and on their findings the judge will decide whether the occasion is privileged or not. (Hebditch v. MacIlwaine and others, (1894) 2 Q. B. at p. 58; Hope v. I'Anson and Weatherby, (1901) 18 Times L. R. 201.) If the occasion is not privileged, and no other defence is raised, the jury must find a verdict for the plaintiff. If the occasion. is absolutely privileged, judgment will at once be given for the defendant. If, however, the judge decides that the occasion is one of qualified privilege only, the plaintiff must then, if he can, satisfy the judge that there is evidence of malice on the part of the defendant to go to the jury. If the plaintiff has given no such evidence, it is the duty of the judge to direct a verdict for the defendant. If he has given any evidence of malice sufficient to go to the jury, then it is a question for the jury whether the defendant was or was not actuated by malicious motives in writing or speaking the defamatory words. (See Chapter XII., Malice, post, p. 319.)

ABSOLUTE PRIVILEGE.

There are occasions when it is for the public interest that persons should not in any way be fettered in their statements, but should speak out freely and fearlessly. In these cases the privilege is absolute, and no action lies for words spoken on such an occasion; the plaintiff cannot be heard to say that the defendant did not intend honestly to discharge a duty, but maliciously availed himself of the privileged occasion to injure the plaintiff's reputation. The immunity is complete.

There are not many such cases, nor is it desirable that there should be many. The Courts refuse to extend their number. (Stevens v. Sampson, 5 Ex. D. 53; 49 L. J. Q. B. 120; 28 W. R. 87; 41 L. T. 782; Royal Aquarium v. Parkinson, (1892) 1 Q. B. at p. 451.) They may be grouped under three heads :

(i) Parliamentary proceedings.

(ii) Judicial proceedings.

(iii) Naval and military affairs, &c.

"Privilege or immunity in respect of defamation is of two kinds— absolute privilege, which is conceded to members of the Houses of Parliament, judges, &c.; and qualified privilege, to which every subject of the Queen is entitled, provided the occasion on which the defamatory matter is written or spoken is privileged, and there is an absence of express malice. The first seems rather to attach to the person or character of the person writing or speaking the defamatory matter; the second, to the occasion when the defamatory matter is written or spoken. The authorities establish beyond all question this that neither party, witness, counsel, jury, nor judge, can be put to answer civilly or criminally for words spoken in office; that no action of libel or slander lies, whether against judges, counsel, witnesses, or parties, for words written or spoken in the course of any proceeding before any Court recognised by law, and this though the words written or spoken were written or spoken maliciously, without any justification or excuse, and from personal ill-will and anger against the person defamed. This 'absolute privilege' has been conceded on the grounds of public policy to insure freedom of speech where it is essential that freedom of speech should exist, and

with the knowledge that Courts of justice are presided over by those who, from their high character, are not likely to abuse the privilege, and who have the power, and ought to have the will, to check any abuse of it by those who appear before them. It is, however, a privilege which ought not to be extended." (Per Lopes, L.J., in Royal Aquarium v. Parkinson, (1892) 1 Q. B. at pp. 450, 451.)

(i) Parliamentary Proceedings.

No member of either House of Parliament is in any way responsible in a Court of justice for anything said in the House. (Dillon v. Balfour, 20 L. R. Ir. 600.) "The freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any Court or place out of Parliament." (Bill of Rights, 1 Will. & Mary, st. 2, c. 2.) This statutory provision merely declares the common law on the subject. (Fielding v. Thomas, (1896) A. C. at p. 612.) And no indictment will lie for an alleged conspiracy by members of either House to make speeches defamatory of the plaintiff. (Ex parte Wason, L. R. 4 Q. B. 573; 38 L. J. Q. B. 302; 40 L. J. M. C. 168; 17 W. R. 881.) But this privilege does not extend outside the walls of the House.

Hence, at common law, even if the whole House ordered the publication of parliamentary reports and papers, no privilege attached. (R. v. Williams, (1686) 2 Shower, 471; Comb. 18 (see, however, the comments on this case in R. v. Wright, (1799) 8 T. R. 293); Stockdale v. Hansard, (1837) 2 Moo. & Rob. 9; 7 C. & P. 731; (1839) 9 A. & E. 1-243 ; 2 P. & D. 1; 3 Jur. 905; 8 Dowl. 148, 522.) But by stat. 3 & 4 Vict. c. 9, all reports, papers, votes, and proceedings ordered to be published by either House of Parliament, were made absolutely privileged, and all proceedings at law, civil or criminal, will be stayed at once on the production of a certificate that they were published by order of either House. By s. 3, however, of the same Act, if an extract from or abstract of any such Parliamentary paper be published not by the authority of Parliament, such