478

124. But an abridged account of a proceeding in a court of justice, if correct, though it contains matter defamatory of an individual, appears to be privileged. In charging the jury in Lewis v. Levy (Court of Queen's Bench, Dec. 2, 1857), Lord Chief Justice Campbell said, "You are the guardians of private character, as well as the guardians of the liberty of the press. It is of the last importance that a privilege should exist of giving fair and correct reports of what passes in courts of justices, without incurring any liability in respect to their contents: it is also of the last importance that this privilege should not be abused; and you are to say It whether in your opinion it has been abused in the present case. is quite admitted that parties are not called upon always to give verbatim reports of proceedings in courts of justice; that would make the privilege illusory, and is only done in very important All that can be accomplished is to give a fair and accurate abridgment of what occurs, taking care that no partiality is shown, and that reasonable care and skill are exercised so that it may be If the jury thought that the reports were fair a true account." But reports, they must find for the defendant, which they did. though a correct report, without malice is allowable of judicial procedure, it is not everything said in a court of justice that may be published with impunity. For instance, a person would not be justified in publishing anything blasphemous or immoral, merely because it was uttered in open court (Court of Exchequer, May 26, 1866).

cases.

A letter by a party to the bishop of the diocese, informing him of a report of misconduct of an incumbent of the district, bringing scandal on the church, if found by the jury to have been bona fide and not from malicious motive, has been held to be a privileged communication.

A court of general gaol delivery has the power to make an order to prohibit the publication of the proceedings, pending a trial likely to continue for several successive days, and to punish disobedience to such order by fine; and the Court of Chancery will punish, as a contempt of court, any attempt to prejudice the minds of the public against persons concerned as parties in causes, before the cause is finally heard.

Writings reflecting on the memory of the dead are punishable, provided it appear the author intended, by the publication, to hurt the feelings of, or to bring dishonour and contempt on, the relations of the deceased.

A fair and candid comment on a place of public entertainment, in a newspaper, is not a libel. Nor a comment upon a literary production, exposing its errors and absurdities, and holding up the author to ridicule; providing such comment do not exceed the limits of fair and candid criticism, by attacking the domestic or other habits of the writer, unconnected with his work. But if a person, under pretence of criticising a literary work, defame the private character of the author, and, instead of fairly discussing

its merits, travel into collateral matter, introducing facts not stated in the work, accompanied with injurious comments upon them, such person is a libeller, and liable to an action.

A fair criticism on the works of a professional artist, in the course of his professional employment, however mistaken it may be, is not libellous; if it is unfair and intemperate, and written for the purpose of injuring the party criticised, it is actionable, Soane v. Knight, Moo. & Malk. 74.

A party who pursues an unlawful vocation has no remedy by action for any libellous comments regarding his conduct in such vocation.

It is not competent for a man charged with libel to justify, by urging that one similar to that for which he is prosecuted was published, on a former occasion, by other persons, who were not prosecuted, 5 T. R. 436.

Though malice is an essential requisite in every criminal libel, yet the act of publication is deemed presumptive evidence of malice, which the defendant will be required to disprove; and printers and publishers have been repeatedly convicted when it was certain, from absence or otherwise, they were ignorant of the contents of the papers they were assisting to circulate by means of their servants or agents.

The party who writes a libel dictated by another, and has discretion to understand its nature-he who originally procures it to be composed--he who actually composes it he who prints, or procures it to be printed he who publishes, or causes it to be published-all, in short, who assist in framing or in diffusing it-are implicated in the guilt of the offence.

As to the privilege of the HOUSE OF COMMONS, in respect of libels, there have been two decisions. In Beaumont v. Thwaites, Lord Tenterden held that the publishing of matter reflecting upon the character of an individual cannot be justified by the fact that such matter was a correct and impartial copy of a parliamentary report, K. B. Nov. 1, 1827.

In the sessions of 1835 and 1836, the House of Commons passed resolutions that parliamentary papers and reports printed for the use of the house should be publicly sold by their printer, and a report from the inspectors of prisons was afterwards ordered by the house to be printed; upon which Chief Justice Denman held that if the report contained a libel on an individual, the printer of the House of Commons, who sold it, was liable to an action, and that the resolutions of the house did not render this a privileged communication, Stockdale v. Hansard, 7 C. & P. 731. But resolutions of both houses were passed in 1815, contravening the opinion of the Queen's Bench; and persons who conceived themselves injured by false evidence given against them to committees of either house, having brought actions to vindicate their characters from the slander, both houses, on being informed by petition of

the party sued that such actions had been brought against them, sent for the plaintiff and his attorney, and by threats compelled them to stay their actions, and so far submit to the imputations brought against them. This was done in the exercise of the alleged privileges of parliament.

Upon this basis the question seems settled by 3 V. c. 9, which affords a summary protection to all persons employed in the publication of any reports, papers, votes, or proceedings that either house of parliament deems necessary to be published, by enabling the parties to adduce, before any court, the certificate of the lord chancellor, or speaker of the House of Commons, attesting that such publication had been ordered.

II. LORD CAMPBELL'S LIBEL ACT.

In the preamble to this act, the 6 &7 V. c. 96, it is declared to be for the better protection of private character, and for more effectually securing the liberty of the press, and the prevention of abuses in its exercise. With these objects it is provided, that in any action for defamation it shall be lawful for the defendant to give in evidence, in mitigation of damages, that he offered an apology to the plaintiff for such defamation before the commencement of the action, or as soon afterwards as he had an opportunity, in case the action shall have been commenced before there was an opportunity of offering an apology. In an action for libel contained in any public newspaper or other periodical publication, it is competent to the defendant to plead that such libel was inserted without actual malice, and without gross negligence; and that before the commencement of the action, or at the earliest opportunity afterwards, he inserted a full apology for the libel, or, if the newspaper or periodical publication in which the libel appeared be ordinarily published at intervals exceeding one week, had offered to publish the apology in any newspaper or periodical publication to be selected by the plaintiff; and the defendant is at liberty to pay into court a sum of money by way of amends for the injury sustained.

By ss. 3-5, if any person publish or threaten to publish any libel upon any other person, or directly or indirectly threaten to print or publish, or directly or indirectly propose to abstain from printing and publishing, or directly or indirectly offer to prevent the printing or publishing, of any matter touching any other person, with intent to extort any money or security for money, or any valuable thing from such or any other person, or with intent to induce any person to confer or procure for any person any appointment or office of profit or trust, every such offender, on being convicted, is liable to be imprisoned, with or without hard labour, in the common gaol or house of correction, for any term not exceeding three years. Any person maliciously publishing any defamatory

libel, knowing the same to be false, and being convicted, is liable to be imprisoned for any term not exceeding two years, and to pay such fine as the court may award. Any person maliciously publishing any defamatory libel, and being convicted, is liable to fine or imprisonment, or both; such imprisonment not to exceed the term of one year. On the trial of any indictment or information for a defamatory libel, the truth of the matters charged may be inquired into, but not amount to a defence unless it was for the public benefit that the matters charged should be published; and to entitle the defendant to give evidence of the truth of such matters it is necessary for him to allege the truth of the matters charged in the manner now required in pleading a justification to an action for defamation, and further to allege the particular fact or reason establishing the public benefit resulting from the publication; to which plea the prosecutor is at liberty to reply generally, denying the whole; and if after such plea the defendant is convicted, it is competent to the court, in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by his plea, and by the evidence given to prove or to disprove the same; but the truth of the matters charged in the alleged libel in no case to be inquired into without such plea or justification. When, upon the trial of any indictment or information for a libel, under the plea of not guilty, evidence shall have been given that shall establish a presumptive case of publication against the defendant by the act of any other person by his authority, the defendant shall be allowed to prove that such publication was made without his authority, consent, or knowledge, and that the publication did not arise from want of due care or caution on his part. In the case of any indictment or information by a private prosecutor for the publication of any defamatory libel, if judgment shall be given for the defendant, he shall be entitled to recover from the prosecutor the costs incurred; and upon a special plea of justification to such indictment or information, if the issue be found for the prosecutor, he shall be entitled to recover from the defendant the costs incurred.

Lord Campbell's act does not extend to Scotland; but it was extended to Ireland by 8 & 9 V. c. 75.

III. PUBLICATION OF LIBEL.

The communication of a libel to any one person is a publication in the eye of the law; and, therefore, the sending an abusive private letter to a man is as much a libel as if it were openly printed, for it equally tends to a breach of the peace. If A. send

a manuscript to the printer of a periodical publication, and do not restrain the printing or publishing of it, and he prints and publishes it in that publication, A. is liable as the publisher, 5 Dow. 501. But if a libel be stolen, this is no publication. The delivery of a news

paper to the officer at the stamp-office is a publication, 4 B. & C. 35. It has been questioned whether the writing and composing a libel with an intent to publish, but not followed by publication, be an indictable offence; at all events, it appears that the finding the paper in the handwriting of the defendant is such prima facie evidence of publication by him as to admit the writing to be read to the jury, from which the jury may infer the publication according to the circumstances before them, Rer v. Burdett, 4 B. & A. 95.

The sale of a libel in a shop is evidence of publication in a prosecution against the master, and is sufficient for conviction, unless contradicted by contrary evidence, showing that he was not privy, nor in any degree assenting to it.

By the 32 G. 3, c. 60, the functions of juries on trials for libel are more precisely ascertained and discriminated. Prior to this act, it had been frequently determined that the only questions for the consideration of the jury were the fact of the publication and the truth of the innuendoes, that is, the meaning of the passages of the libel, as stated in the record; and the court alone was competent to determine whether the matter of the publication was or was not libellous. But the 32 G. 3 provides, that on every trial of an indictment or information for libel, the jury may give a general verdict of guilty or not guilty, and shall not be required or directed by the judge to find the defendant guilty merely on proof of publication, and of the sense ascribed to the libel in the record.

The punishment for either making, repeating, printing, or publishing a criminal libel is fine, or fine and imprisonment, proportioned to the nature of the offence and rank of the offender.

When a person is brought up to receive judgment, his conduct subsequent to his conviction may be taken into consideration, either by way of aggravation or mitigation of the punishment.

CHAPTER II.
Slander.

SLANDER, or evil-speaking, consists in maliciously and falsely speaking of another, charging him with the commission of an offence punishable by law, as treason, murder, larceny; or which may exclude him from society, as with having an infectious disease; or which may hurt his trade or livelihood, as to call a tradesman a bankrupt, a physician a quack, or a lawyer a knave.

Words imputing an indictable offence are actionable or not, according to the sense in which they may be understood by bystanders not acquainted with the facts to which they may relate, and which may render them privileged, and the secret intent of the speaker is immaterial, Hankinson v. Bilby, 16 Mees & W. 442.