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 misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality." (1)

But "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.” (2)

Comment on well-known facts, or facts, which are admitted to exist is a very different thing from asserting as a fact, something which is unsubstantiated, and then commenting upon the thing so asserted and unsubstantiated.

The very statement of the rule as to fair and bona fide comment on a matter of public interest assumes that the matters commented upon have been, some how or other, ascertained to be actual facts It does not mean that a man may invent something, and then proceed to comment upon it, in what would be a fair and bona fide manner, if the thing were actually a fact well known or admitted.

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 make the bare assertion that he has been guilty of particular acts of misconduct.

Although the right to comment upon the public acts of public men is not the peculiar privilege of the press, but the right of citizens generally, and although, in strict law, newspaper writers stand in no better position than any other person, still they are usually allowed greater latitude by juries; for, in a great measure, the duty of watching narrowly the conduct of government officials and the working of all public institutions, and of commenting freely on all matters of general concern to the nation, and of fearlessly exposing abuses, is a duty which has come to be looked upon, by the public at large, as one within the peculiar province of the press.

Odgers also points out that "Comment and criticism on matters of public interest stand on a very 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. But so soon as there is any attempt at comment, the privilege is lost. 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 publications; while fair comments, if on matters of public interest, are, as such, no libels at all.” (3)

ILLUSTRATIONS.

A newspaper is entitled to comment upon the hearing of a criminal charge and the evidence produced thereat, and discuss the conduct of the magistrates in dismissing the charge without hearing all the evidence; but not to disclose "evidence which might have been adduced" and argue therefrom that the accused was guilty of the felony. (4)

A. and B. owned the Natal Witness, in which they attacked the official conduct of C. the British Resident Commissioner in Zululand, asserting that he had

(1) Lord Ellenborough, in Tabart v. Tipper, 1 Camp. 351.

(2) Per Huddleston, B., in Whistler v. Ruskin. Times for Nov. 27th., 1878. (3) Odgers, Lib. & Sl. 36.

(4) Hibbins v. Lee, 4 F. & F. 243; 11 L. T. 541.

Helsham v. Blackwood, 11 C. B. 111; 20 L. J. C. P. 187; 15 Jur. 861.
R. v. White and another, 1 Camp, 359.

violently assaulted a Zulu chief, that he had set on his native police to assault and abuse others, &c. They declared that though doubt had been thrown on these stories they would prove to be true on investigation. They then proceeded, on the assumption that the charges were true, to comment on C.'s conduct in offensive and injurious language. At the trial, it was proved that the charges were without foundation; and A. and B. made no attempt to support them by evidence. Verdict for £500. Motion for a new trial refused by Supreme Court of Natal. Held, on appeal to Privy Council that the distinction must be closely drawn between comment or criticism, and allegations of fact; and that the publication was in no way privileged. (1)

A newspaper reported that the mother of a lady, dead and buried, had applied to the coroner, on affidavits that the body might be exhumed, and proceeded to give a sensational narrative of shocking acts of cruelty to the deceased committed by her husband, imputing that he had caused her death. This narrative commenced-" From inquiries made by our reporter it appears, &c. In realty the reporter had made no inquiries; he had merely read the affidavits, and accepted the ex parte statements contained in them as truth they were in fact wholly false. He was convicted and fined £50. (2)

A Dublin newspaper asserted that plaintiff, the manager of the Queen's Printing Office in Ireland, had corruptly supplied Freeman's Journal with official information and surreptitious copies of official documents. A plea of fair comment, stating that Freeman's Journal did somehow get official information earlier than other papers, and that defendant bona fide believed that such information could only have been obtained from the Queen's Printing Office, was held bad on demurrer. (3)

It is not a fair comment on any legal proceedings to insinuate that a particular witness committed perjury in the course of them. (4)

A., in "A History of New Zealand,” stated that B,, a cavalry lieutenant, had charged at some women and children who were harmlessly hunting pigs, "and cut them down gleefully and with ease"; that he had dismissed a subordinate officer who protested against this cruelty, and that he was known among the Maoris as Kohuru" (the murderer). A., admitted that these facts did not appear in official reports, or in any other history of New Zealand; but he called a witness who had made a statement to the Governor of New Zealand on hearsay evidence, containing the same charge, a copy of which statement the Governor had forwarded to A. Held, no defence. Verdict £5,000, damages. (5)

66

Matters of public interest.-Among matters of public interest Odgers mentions the following:

1. Affairs of State (including the policy, foreign or domestic, of the government, the conduct of public servants, all suggestions of reforms in existing laws, all bills before parliament, the adjustment and collection of taxes, etc.)

2. The administrstion of justice; (including the conduct of suitors and witnesses, the verdicts of juries, etc., but on these, during the progress of a trial there should be nothing beyond simple reports, and no comments until after the trial is ended.)

(1) Davis & Sons v. Shepstone, 11 App. Cas. 187; 55 L. J. P. C. 51; 34 W. R. 722; 55 L. T. 1; 50 J. P. 709.

See Walker v. Brogden, 19 C. B. N. S. 65; 11 Jur. N. S. 671; 13 W. R. 809; 12 L. T. 495 and, also Duplany v. Davis, 3 Times L. R. 184.

(2) R. v. Andrew Gray, 26 J. P. 663.

(3) Lefroy v. Burnside, (No. 2), 4 L R. Ir. 557.

(4) Roberts v. Brown, 10 Bing. 519; 4 Moo. & S. 407.

Littler v. Thompson, 2 Beav. 129.

(5) Bryce v. Rusden, 2 Times L. R. 435; See also Brenon v. Ridgway, 3 Times L. R. 592.

3. Public institutions and local authorities; (including town councils, school boards, boards of health, vestries, hospitals, colleges, asylums, etc.)

4. Ecclesiastical affairs; (including a bishop's government of his diocese, a rector's management of his parish, etc.)

5. Books, pictures and architecture.

6. Theatres, concerts and other public entertainments.

ILLUSTRATION.

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

The evidence before a Royal Commission is matter publici juris, and everyone has a perfect right to criticise it. (1)

So is evidence taken before a Parliamentary Committee on a local gas bill. (2)

A report of the Board of Admiralty upon the plans of a naval architect, submitted to the Lords, of the Admiralty for their consideration. is a matter of national interest. (3)

All appointments by the Government to any office are matters of public concern. (4)

A newspaper is entitled to comment on the fact (if it be one) that corrupt practices extensively prevailed at a recent Parliamentary election so long as it does not make charges against individuals. (5)

A meeting assembled to hear a political address by a candidate at a Parliamentary election, and the conduct thereat of all persons who take any part in such meeting, are fair subjects for bond fide discussion by a writer in a public newspaper. (6)

The details of a long-protracted squabble between a professional singer and a great composer do not become matters of public interest, merely because the former ultimately applies to a police magistrate for a summons against the latter. (7)

16

The management of the poor and the administration of the poor-law in each local district are matters of public interest." (8)

The official conduct of a way-warden may be freely criticised in the local press. (9)

The manner in which a coroner's officer treats a deceased's poor relatives when serving them with a summons for an inquest, and the behaviour of such officer in court are matters of public concern. (10)

The conduct of a trustee of a private corporation, as such trustee, is not a matter of public interest. (11)

(1) Per Wickens, V. C, in Mulkern v. Ward, L. R. 13 Eq. 622; 41 L. J., Ch. 464; 26 L. T. 831.

(2) Hedley v. Barlow, 4 F. & F. 224.

(3) Henwood v. Harrison, L. R. 7 C. P. 606; 41 L. J. C. P. 206; 20 W. R. 1000; 26 L. T. 938.

(4) Seymour v Butterworth, 3 F. & F. 372.

(5) Wilson v. Reed and others, 2 F. & F. 149.

(6) Davis v. Duncan, L. R. 9 C. P. 396; 43 L. J. C. P. 185; 22 W. R. 575; 30 L. T. 464.

(7) Weldon v. Johnson, Times for May 27th, 1884.

(8) Per Cockburn, C. J., in Purcell v. Sowler, 2 C. P. D. 218; 46 L. J. C. P. 308 25 W. R. 362; 36 L. T. 416.

(9) Harle v. Catherall, 14 L. T, 801.

(10) Per Bowen, J, in Sheppard v. Lloyd, Daily Chronicle for March 11, 1882. (11) Wilson v. Fitch, 41 Cal. 363.

The press may comment on the fact of the incumbent of a parish having, contrary to the wishes of the church-warden, allowed books to be sold in church during service, and cooked a chop in the vestry after service. (1)

The court were equally divided on the question whether sermons preached in open church, but not printed and published, were matter for public comment. (2) Quaere, would it not depend upon whether or not the sermon itself dealt with matters of public interest?

The articles which appear in a newspaper and its general tone and style may be the subject of adverse criticism, as well as any other literary production; but no attack should be made on the private character of a writer on its staff. (3)

A comic picture of the author of a book, as author, bowing beneath the weight of his volume, is no libel; though a personal caricature of him as he appeared in private life would be. (4)

Criticism, however trenchant, on any new poem or novel, or on any picture exhibited in a public gallery, is no libel. (5)

But to maliciously pry into the private life of any poet, novelist, artist, or statesman, is indefensible.

A gentleman unconnected with the stage got up what he called "a Dramatic Ball." The company was disorderly and far from select. No actor or actress of any reputation was present at the ball, or took any share in the arrangements. The Era. the special organ of the theatrical profession, published an indignant article, commenting severely on the conduct of the prosecutor in starting such a ball for his own profit, and particularly in calling such an assembly "a Dramatic Ball. Criminal proceedings resulted in a verdict of "Not guilty." (6)

A newspaper, commenting on a flower-show, denounced one exhibitor by name as "a beggarly soul," famous in all sorts of dirty work," and spoke of

64

""

the tricks by which he and a few like him used to secure prizes" as being now" broken in upon by some judges more honest than usual." Such remarks are clearly not fair criticism on the flower-show. (7)

Seeking redress for grievance. In making an application for the purpose of obtaining redress for some injury received, care should be taken to make the application to some one having jurisdiction to entertain it, or having power to redress the grievance, or who is reasonably believed, by the applicant, to be under some obligation to afford a remedy; for if the applicant recklessly make statements to some one who is, as he ought to have known, altogether unconcerned with the matter, the privilege may be lost. (8)

A letter to the Secretary at War, with the intent to prevail on him to exert his authority to compel the plaintiff (an officer of the army) to pay a debt due from him to defendant, was held privileged, although the Secretary at War had no direct power or authority to order the plaintiff to pay his debt. "" It was an application," says Best, J., "for the redress of a grievance, made to one of the

(1) Kelly v. Tinling, L. R. 1 Q. B. 699; 35 L. J. Q. B. 231 ; 14 W. R. 51; 13 L. T. 255; 12 Jur. N. S. 940.

(2) Gutherole v. Miall, 15 M. & W. 319.

(3) Heriot v. Stuart, 1 Esp. 437; Stuart v. Lovell, 2 Stark. 93; Campbell v. Spottiswoode, 3 F. & F. 421; 32 L. J. Q. B. 185; 3 B. & S. 769; 9 Jur. N. Š. 1069: 11 W. R. 569; 8 L. T. 201.

(4) Sir John Carr v. Hood, 1 Camp. 355n.

(5) Strauss v. Francis, 4 F. & F. 939, 1107; 16 L. T. 674.

(6) R. v. Ledger, Times for Jan. 14th, 1880. And see Dibdin v. Swan and Bostock, 1 Esp. 28.

(7) Green v. Chapman, 4 Bing, N. C. 92; 5 Scott, 340. Hawk P. C., 544.

(8)

King's ministers, who, as the defendant honestly thought, had authority to afford him redress." (1)

The inhabitants of a district prepared a memorial charging plaintiff a teacher in a district school, with drunkenness and immorality, and sent it to the local superintendent of schools. It ought strictly to have been sent first, to the trustees of that particular school, who would, then, if they thought fit, in due course forward it to the local superintendent to take action upon it. Held, that the publication was still prima facie privileged, although, by a mistake easily made, sent to the wrong quarter in the first instance. (2)

An elector of Frome petitioned the Home Secretary, stating that plaintiff, a magistrate of the borough, had made speeches inciting to a breach of the peace, and praying for an inquiry, and for plaintiff's removal from the commission of the peace. Such petition was held to be privileged, although it should more properly have been addressed to the Lord Chancellor. (3)

295. Answers to inquiries.—No one commits an offence by publishing, in answer to inquiries made of him, defamatory matter relating to some subject as to which the person by whom, or on whose behalf, the inquiry is made has, or on reasonable grounds is believed by the person publishing to have, an interest in knowing the truth, if such matter is published for the purpose, in good faith, of giving information in respect thereof to that person, and if such defamatory matter is believed to be true, and is relevant to the inquiries made, and also if such publishing does not in manner or extent exceed what is reasonably sufficient for the occasion.

The answer to an enquiry should not consist of irrelevant information gratuitously volunteered. For instance, if A., asks B., the name and address of C., B. is not justified in launching out into some disparagement of C's credit

or conduct.

ILLUSTRATIONS.

If A., is about to have dealings with B., but first comes to C., and confidentially asks him his opinion of B., C.'s answer is privileged. (4)

If a friend tells me he wants a good lawyer to act for him and asks my opinion of Smith, I am justified in telling him all I know for or against Smith. But if a stranger asks me in the train, "Is not that gentleman a lawyer?" I should not be justified in replying, "Yes, but he ought to have been stripped of his gown long ago.

A. met B., and addressing him said: "I hear that you say the bank of Bromage and Snead at Monmouth has stopped. Is it true?" B. answered. "Yes. I was told so. It was so reported at Cricklewell; nobody would take their bills, and I came to town in consequence of it myself." Held, that if B. understood A. to be asking for information by which to regulate his conduct, and spoke the words by way of honest advice, they were prima facie privileged. (5)

A. was asked to sign a memorial, to retain B. as trustee of a charity from

(1) Fairman v. Ives, 5 B. & Ald. 642; 1 Chit. 85; 1 D. & R. 252.

(2) McIntyre v. McBean, 13 U. C. (Q. B.) Rep. 534.

(3) Harrisson v. Bush, 5 E. & B. 344; 25 L. J. Q. B. 23, 59; 1 Jur. N. S. 846;

2 Jur. N. S. 90. Scarll v. Dixon, 4 F. & F. 250.

(4) Story v. Challands, 8 C. & P. 234.

(5) Bromage v. Prosser, 4 B. & Cr. 247; 1 C. & P. 475; 6 D. & R. 296.