CHAPTER XI. PRIVILEGED REPORTS. FAIR and accurate reports of certain proceedings are privileged, because it is a benefit to the public to be accurately informed as to such proceedings. grouped into three classes : (i) Reports of judicial proceedings. (ii) Reports of parliamentary proceedings. (iii) Reports of public meetings. They may be The first two classes of reports were privileged at common law; the third class only acquired privilege by virtue of two Acts of Parliament: the Newspaper Libel and Registration Act, 1881, and the Law of Libel Amendment Act, 1888. The history of this legislation, and the causes which lead to it, are briefly sketched in Appendix B., post, p. 759. In all three cases, the privilege is qualified only it is lost, if the plaintiff can show that the defendant acted maliciously in making and publishing the report. Privileged reports (of all three classes) differ from those cases in which privilege is founded upon duty interest or self defence in one important respect. They do not depend upon any private right or special duty enjoyed by or imposed on the defendant, or upon his particular relation towards some third person. Any one may publish such reports to any one, so long as they are fair and accurate. Hence, the right to publish such reports is not a privilege in the strictest sense of the word. But it is convenient to treat of these reports in connection with other communications which enjoy a qualified privilege. (i) Reports of Judicial Proceedings. Every impartial and accurate report of any proceeding in a Court of law is privileged, unless the Court has itself prohibited the publication, or the subject-matter of the trial be unfit for publication. This rule applies to all proceedings in any Court of justice, "For this superior or inferior, of record or not of record. 66 purpose no distinction can be made between a Court of piepoudre and the House of Lords sitting as a Court of justice." (Per Lord Campbell, in Lewis v. Levy, E. B. & E. 537; 27 L. J. Q. B. 287.) It is immaterial whether the proceeding be ex parte or not, whether the matter be one over which the Court has jurisdiction or not, and whether it disposes of the case finally or sends it for trial to a higher tribunal. (Usill v. Hales, 3 C. P. D. 319; 47 L. J. C. P. 323; 26 W. R. 371; 38 L. T. 65; Kimber v. The Press Association, (1893) 1 Q. B. 65; 62 L. J. Q. B. 152; 41 W. R. 17; 67 L. T. 515.) The reason for this privilege is thus stated by Lawrence, J., in R. v. Wright, 8 T. R. 298: "The general advantage to the country in having these proceedings made public more than counterbalances the inconvenience to private persons whose conduct may be the subject of such proceedings." Cockburn, C.J., uses language almost identical in Wason v. Walter, L. R. 4 Q. B. 87; 8 B. & S. 730. Whenever a Court is engaged in the adjudication of the legal rights of the parties before it, the proceeding is in its nature judicial, and the public is entitled to be present, so long as there is room in the building, unless an order has been properly made for their exclusion. And it is an advantage to the public that fair and accurate reports should be published, which place those who were not present in Court in the same position as those who were. (Per Lord Esher, M.R., in MacDougall v. Knight & Son, 17 Q. B. D., at p. 638.) It is only since 1878 that the law has extended so wide an immunity to reports of proceedings before police magistrates or justices of the peace. Thus, while Lewis v. Lery decided that a report of a preliminary investigation before a magistrate was privileged if the result was that the summons was dismissed and the person accused discharged, still it was expressly held in Duncan v. Thwaites, 3 B. & C. 556; 5 D. & R. 447, that such a report was unprivileged, if the accused was ultimately sent to take his trial before a jury. The reason for the distinction was that in the one case the decision is final, and the investigation at an end; in the latter the examination is preliminary merely, and the minds of the future jury may possibly be influenced by the publication. Again, there is an obvious distinction between an ex parte application where the accused has no opportunity of defending himself, and a full trial where both parties address the Court by their counsel or solicitors, and call what witnesses they please. There are dicta of eminent judges which would seem to deny any privilege to fair and accurate reports of ex parte proceedings, even in the superior Courts. (Per Maule, J., in Hoare v. Silverlock (No. 2, 1850), 9 C. B. 23; 19 L. J. C. P. 215; and Abbott, C.J., in Duncan v. Thwaites, 3 B. & C. 556.) But Curry v. Walter, 1 Bos. & P. 525; 1 Esp. 456, is an express decision that such reports are privileged: a case which was at one time doubted, but is now clear law. Cockburn, C.J., in Wason v. Walter, L. R. 4 Q. B. 93, expressed his clear opinion that a fair and accurate report of an ex parte application would be privileged (see post, p. 309). And now the decision in Usill v. Hales, post, p. 294, settles the law, and extends immunity to all bonâ fide and correct reports of all proceedings in a magistrate's Court, whether ex parte or otherwise; and such cases as R. v. Lee, 5 Esp. 123, must be considered to be overruled, in so far at all events as they lay down any general rule to the effect that it is unlawful to publish any report of ex parte proceedings. A third distinction was as to matters coram non judice. It might well be contended that where a magistrate listens to a slanderous complaint and gives some advice as to a matter wholly outside his jurisdiction, he is not discharging any magisterial function nor acting in any judicial capacity. It is as though the conversation took place in his private drawing-room. And to this effect was the decision in M'Gregor v. Thwaites, 3 B. & C. 24; 4 D. & R. 695. But this decision is practically overruled by Usill v. Hales, in which case a report of an application made ex parte to a magistrate was held privileged, although the magistrate eventually decided that he had no jurisdiction in the matter. Lord Coleridge, C.J., it is true, drew a distinction (3 C. P. D. 324) between "inherent want of jurisdiction on account of the nature of the complaint" and "what may be called resulting want of jurisdiction because the facts do not make out the charge." But Lopes, J., in his judgment, does not rely on any such distinction. It is surely the duty of the magistrate to listen to an applicant until it becomes clear from what he says that the magistrate has no jurisdiction over the subject-matter of the complaint. Hence, I think, since the decision in Usill v. Hales, newspapers may safely report any application made to a magistrate in open Court, even though the magistrate should prove to have no jurisdiction. 66 There is nothing, however, in the case of Usill v. Hales, which expressly overrules the first distinction-that taken in Duncan v. Thwaites, 3 B. & C. 556,—that a fair report of a magistrate's decision is privileged when it finally disposes of the matter of the application, but is not privileged where the inquiry is but a preliminary one, and the prisoner is committed to take his trial at the Assizes or the Central Criminal Court. In Usill v. Hales, the matter was finally disposed of by the magistrate; it was unnecessary therefore for the Court to decide the point. But the whole spirit of the decision is against this time-honoured distinction. Lord Coleridge frankly admits (p. 325): -"I do not doubt for my own part that if this argument had been addressed to a Court some sixty or seventy years ago, it might have met with a different result from that which it is about to meet with to-day." And then, after referring to R. v. Fleet, 1 B. & Ald. 379, and Duncan v. Thwaites, the learned judge continues :-" But we are not now living, so to say, within the shadow of those cases." And Lopes, J., also doubted how far the old authorities were binding in the present day (3 C. P. D. 329). In Ireland the question was practically settled by the decision of the majority of the judges in R. v. Gray, 10 Cox, C. C. 184. And now in England it is practically laid to rest by the judgments of the Court of Appeal in Kimber v. The Press Association, (1893) 1 Q. B. 65. There a fair and accurate report of an ex parte application made to justices in open Court for the issue of a summons for perjury was held privileged, although the justices granted the summons, so that the matter was not finally disposed of on that day, but came on for hearing a week later, and was then dismissed. The Court of Appeal held that it was enough if there was a final decision "at one stage or other of the proceedings," and that the reporters need not wait till that stage had been reached, but might report the proceedings at each stage. Now every law suit must come to an end sooner or later; hence, every step in every law suit taken in open Court may be reported. In other words, a newspaper reporter may now report everything that occurs publicly in open Court without fear of any action, provided only that his reports are fair and accurate, and not interspersed with comments of his own. "The law upon such a subject must bend to the approved usages of society, though still resting upon the same principle, that what is hurtful and indicates malice should be punished and that what is beneficial and bonâ fide should be protected." (Per Lord Campbell, C.J., in Lewis v. Levy, E. B. & E. 560; 27 L. J. Q. B. 282; 4 Jur. N. S. 970.) Illustrations. The following passage appeared in the Daily News, the Standard, and the Morning Advertiser, on the same morning :-"Three gentlemen, civil engineers, were among the applicants to the magistrate yesterday, and they applied for criminal process against Mr. Usill, a civil engineer, of Great Queen Street, Westminster. The spokesman stated that they had been engaged in the survey of an Irish railway by Mr. Usill, and had not been paid what they had earned in their various capacities, although from time to time they had received small sums on account; and, as the person complained of had been paid, they considered that he had been guilty of a criminal offence in withholding their money. Mr. Woolrych said it was a matter of contract between the parties; and although, on the face of the application they had been badly treated, he must refer them to the County Court." Mr. Usill thereupon brought an action against the proprietor of each newspaper. The three actions were tried together before Cockburn, C.J., at Westminster, on November 15th, 1877. The learned judge told the jury that the only question for their consideration was whether or not the publication complained of was a fair and impartial report of what took place before the magistrate; and that, if they found that it was so, the publication was privileged. The jury found that it was a fair report of what occurred, and accordingly returned a verdict for the defendant in each case. Held, that the report was privileged, although the proceedings were ex parte, and although the magistrate decided that he had no jurisdiction over the matter. Usill v. Hales, Usill v. Clarke, 3 C. P. D. 319; 47 L. J. C. P. 323; 26 W. R. 371; 38 L. T. 65; 41 J. P. 743. See M'Gregor v. Thwaites, 3 B. & C. 24. A fair and accurate report in a newspaper of proceedings before a magistrate on a preliminary investigation of a charge of treason-felony is privileged, although the prisoners were ultimately committed for trial, and are awaiting trial at the moment of publication. So held in Ireland by Lefroy, C.J., and Fitzgerald and O'Brien, JJ.; dissentiente, Hayes, J. R. v. Gray, 10 Cox, C. C. 184; overruling Duncan v. Thwaites, 3 A fair and accurate report in a newspaper of an ex parte application made to |