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Illustrations.

(1.) 1 A religious society called the S. Nunnery, consisting of certain nuns and other persons, may be libelled though no individual is specially referred to.

(2.) 2 A libel may be published against "certain persons lately arrived from Portugal and living near Broad Street," though no particular person is mentioned or referred to.

ARTICLE 292.

THINGS CAPABLE OF BEING LIBELS.

3 Any words or signs conveying defamatory matter marked upon any substance, and any thing which by its own nature conveys defamatory matter, may be a libel in the second sense of the word before mentioned. Words spoken can in no case be a libel, although they may convey defamatory

matter.

Illustration.

A letter or passage in a book or newspaper, words written on a wall, a picture, a gallows set up before a man's door, or a waxen portrait model" exhibited as one of a collection of notorious malefactors, may be a libel.

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ARTICLE 293.

DEFAMATORY MATTER.

Defamatory matter is matter which, either directly or by insinuation or irony, tends to expose any person to hatred, contempt, or ridicule.

1 R. v. Gathercole, 1838, 2 Lew. 237.

2 R. v. Osborne, 1732; 2 Kel. 230.

3 3 Russ. Cr. p. 178; 1 Hawk. P. C. 542; Folkard's Starkie, 167. As to cases in which words spoken amount to a criminal offence, see Articles 72, 96, 179.

4 Monson v. Tussauds, Limited, 1894, 1 Q. B. 671.

5 Folkard's Starkie, 171, 172.

Illustrations.

The following are instances of defamatory matter :

1 A question suggesting that illegitimate children were born and murdered in a nunnery;

2 "A adds to his other vices ingratitude";

3 "A will not play the fool or the hypocrite" (meaning that he would);

4 66 'A has the itch, and smells of brimstone."

5 An imputation that A (a clergyman) poisoned foxes in a hunting country and hung them by the neck, and was himself hung in effigy for so doing.

ARTICLE 294.

PUBLICATION DEFINED.

6 To publish a libel is to deliver it, read it, or communicate its purport in any other manner, or to exhibit it to the person libelled, or any other person, 7 provided that if the person making the publication shows that he did not know, and had no opportunity of knowing, the contents of the libel, or that the newspaper or other publication of which it forms part was likely to contain libellous matter, his act is not deemed to amount to a publication.

8 A libel published in the ordinary course of the business of any person whose trade it is to deal in articles of the kind to which the libel belongs, is deemed to be published, not

1 R. v. Gathercole, 1838, 2 Lew. C. C. at p. 255.

2 Cox v. Lee, 1869, L. R. 4 Ex. 284.

31 Hawk. P. C. 543.

4 Villars v. Mousley, 1796, 2 Wils. 403. 5 R. v. Cooper, 1846, 8 Q. B. 533. I think it might, under special circumstances, be a libel to say of a person a thing apparently quite inoffensive. Suppose, for instance, a man wrote of another "his name is A," meaning that his real name was A, and that the name of B, by which he passed, was falsely assumed, would not this be a libel? but cf. Capital and Counties Bank v. Henty, 1882, 7 App. Cas. 741.

6 R. v. Burdett, 1820, 4 B. & Ald. 95. A libel published to the person libelled is a misdemeanor, because it tends to a breach of the peace, but it is not actionable, as it cannot injure the reputation of the person libelled.

7 Emmens v. Pottle, 1885, 16 Q. B. D. 354.

8 Cases in Folkard's Starkie, 451-454; and especially R. v. Almon 1770, 5 Burr. 2686.

only by the person who actually sells or exhibits it, but also by his master if his master has given him general authority to sell or exhibit for his master's profit articles of that kind.

1 Provided that whenever, upon the trial of any person for the publication of a libel, evidence has been given which establishes a presumptive case of publication against the defendant by the act of any other person by his authority, the defendant may prove that such publication was made without his authority, consent, or knowledge, and that the said publication did not arise from want of due care or caution on his part.

2 If the proprietor of a newspaper or other periodical work gives general authority to an editor to manage the paper, it is a question of fact whether the proprietor authorized the editor to publish the libel which is the subject of the indictment or information. Authorization is not to be presumed from the mere fact that the general control of the paper was left to the editor, but may be inferred from circumstances showing that the proprietor permitted the editor to publish libels, or was indifferent as to whether libels were published by him or not.

Illustrations.

(1.) 3 A delivers to B an open letter, of which A is the author, containing matter defamatory of C. A has published a libel.

(2.) 3 A posts to B a sealed letter, of which A is the author, and which contains a libel on C. It seems that the posting of the letter is in itself a publication (quare).

(3.) 3 The postman delivers to B the letter mentioned in the last illustration. The postman has not published the letter, but A has.

(4.) A bookseller's shopman sells a libellous book over the counter in the ordinary course of business; both the shopman and the bookseller have published the libel.

1 6 & 7 Vict. c. 96, s. 7. Probably the effect of such proof would be to excuse the master, though the Act does not say so. See R. v. Almon supra as to the rule before the statute.

2 R. v. Holbrook, 1878, 4 Q. B. D. 42.

3 All these Illustrations are founded on R. v. Burdett, 1820, 4 B. & Ald. 95. (1) is assumed by all the judges; (2) is doubted by Bayley, J., p. 153; (3) is given by Best, J., p. 126.

ARTICLE 295.

WHEN A LIBEL IS MALICIOUS.

1 The publication of a libel is malicious in every case which does not fall within the provisions of some one or more of the seven articles next following.

ARTICLE 296.

PUBLICATION OF THE TRUTH.

2 The publication of a libel is not a misdemeanor if the defamatory matter is true, and if the publisher can show that it was for the public benefit that such matter should be published.

Illustration.

3 A writes of B, "Many years ago B committed immoral acts." The imputation is true. This is not a libel if the publisher can show that it was for the public benefit that it should be published.

ARTICLE 297.

PUBLICATION OF MATTER HONESTLY BELIEVED TO BE TRUE.

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The publication of a libel is not a misdemeanor if the defamatory matter published is honestly believed to be true,

1 In Bromage v. Prosser, 1825, 4 B. & C. 247, which is a leading case on the subject, Bayley, J., says, "Malice.. in its legal sense means a wrongful act done intentionally and without just cause or excuse. From the nature of the case the publication of a libel must be an intentional act. The next seven Articles sum up the different states of fact which have been held to constitute "just cause or excuse for publishing libels. In Bromage v. Prosser and many other cases, much is said of malice in law and malice in fact, of privileged publications, &c., &c.; but a sufficiently simple and intelligible result has at last been reached by very circuitous roads. See Note X.

2 Effect of 6 & 7 Vict. c. 96, s. 6.

3 R. v. Newman, 1853, 1 E. & B. 558; and see D. & P. 85.

4 See Folkard's Starkie, ch. xi. 283-329. I have gone carefully through these forty-six pages twice or more, and I cannot see that they contain anything beyond this principle and rather obvious illustrations of it expressed in a very complicated way. The leading case on the subject is Harrison v. Bush, 1855, 5 E. & B. 344.

by the person publishing it, and if the relation between the parties by and to whom the publication is made is such that the person publishing is under any legal, moral, or social duty to publish such matter to the person to whom the publication is made, or has a legitimate personal interest in so publishing it, provided that the publication does not exceed either in extent or in manner what is reasonably sufficient for the occasion, 1and provided that the person who publishes is not in fact actuated in so doing by any indirect motive.

When the existence of the relation establishing the duty has been proved, the burden of proving that the statement was not honestly believed to be true, and that the defendant was in fact actuated by some indirect motive (both or either) is upon the prosecutor.

Illustrations.

(1.) 2 A being asked the character of B, who had been in his service, by C, who is about to engage B as a servant, writes of B in a letter to C, the words "B is a drunkard and a thief." If A honestly and on reasonable grounds believes that B is a drunkard and a thief, though in fact he is neither, this is not a libel.

If A published this letter in a newspaper it would be a libel. As soon as the circumstances under which the letter was written are proved or appear the burden of proving that A did not honestly and on reasonable grounds believe B to be a drunkard and a thief is upon B in a prosecution or action by B.

(2.) 3 A, the private secretary of a general, being directed by the general to give an inspecting officer information as to the discipline of a body of troops, writes a letter to the inspector, in which he says that B, who had formerly commanded the troops, attempted to excite a mutiny when he was removed from his command. This is not a libel, though false, if A honestly believed it to be true, and if it was relevant to the subject on which A was directed to report.

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(3.) A writes a letter containing matter defamatory of B to

1 Clark v. Molyneux, 1877, Q. B. D. 237.

2 Many cases as to giving characters to servants are collected and abstracted in Folkard's edition of Starkie, pp. 286-292.

3 Beatson v. Skene, 1860, 5 H. & N. 838. This was an action for verbal slander, but the principle is the same.

4 Todd v. Hawkins, 1837, 8 C. & P. 88.