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CHAPTER XXXI.

* LIBELS ON PRIVATE PERSONS.

1 ARTICLE 340.

DEFINITION OF LIBEL.

[THE word "libel" means

(a.) the offence defined in this Article.

(b.) anything by the publication of which the offence is committed.

2

Every one commits the misdemeanor called libel who maliciously publishes defamatory matter of any person, or body of persons definite and small enough for its individual members to be recognized as such, in or by means of anything capable of being a libel in the second sense of the word.

The publication of a libel on the character of a dead

See Appendix Note X.

1 S. D. Art. 267.

[The best modern statement on the law of libel is by Lord Blackburn in Capital and Counties Bank v. Henty, L. R. 7 App. Cas. 769-788. See also my History of the Criminal Law, vol. ii. pp. 298-395 and 1 Hawk. P. C. 542. As to what can be a "libel" see Article 341. As to "publishes," see Article 343; "maliciously," see Article 344.

As to libels on the dead, see R. v. Topham, 4 T. R. 126; also R. v. Labouchere, L. R. 12 Q. B. D. 322-4. In February, 1887, I tried the case of R. v. Ensor at the assizes at Cardiff. The case was of a newspaper libel on a political opponent who had been dead for three years. It led to an assault by the dead man's sons upon his supposed libeller. I directed an acquittal on the ground that no evidence was offered to show that the libel in any way referred to any living person. I ought to have added, but I did not do so clearly, that there was no evidence that the defendant wished to provoke the sons of the deceased. It was not even stated that he knew of their existence. I thought that an actual intent to injure (I should have added) or to provoke or annoy the sons was essential to the offence, and that a mere tendency to provoke, or constructive intention inferred from the fact that the libel was calculated to hurt the feelings of, any surviving relations of the deceased was not enough. I have altered the wording of this Article accordingly.] And see R. v. Carr, 82 L. T. 100.

A wife cannot take criminal proceedings against her husband for defamatory libel; R. v. The Lord Mayor of London, L. R. 16 Q. B. D. 772.

[person is not a misdemeanor unless it is intended to injure or provoke living persons.

Illustrations.

1

(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.) 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.

4

3 ARTICLE 341.

THINGS CAPABLE OF BEING LIBELS.

Any words or signs conveying defamatory matter marked upon any substance, and anything 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, may be a libel.

5 ARTICLE 342.

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, 2 Lew. 237.

2 R. v. Osborne, 2 Keb. 230; 2 Barnard. 138, 166.]

3 S. D. Art. 268.

[3 Russ. Cr. p. 178; 1 Hawk. P. C. 542; Folkard's Starkie, 151. As to cases in which words spoken amount to a criminal offence, see Articles 74, 121, 207.]

5 S. D. Art. 269.

"[Folkard's Starkie, 156, 157.] See Connick v. Wilson, 2 Kerr, 496 & 617; Andrews v. Wilson, 3 Kerr 86; Carvill v. McLeod, 4 All. 332; Hall v. Carty, James 379. It is not libellous to write of a man that his outward appearance is more like an assassin than an honest man; Lang v. Gilbert, 4 All. 445.

Illustrations.

[The following are instances of defamatory matter :

1A 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"A has the itch, and smells of brimstone ";

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.

6 ARTICLE 343.

PUBLICATION DEFINED.

8

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, provided that if the person making the publication shews 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 is likely to contain libellous matter, his act is not deemed to amount to a publication. '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 only by the person who actually sells or exhi

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1 [R. v. Gathercole, 2 Lew. C. C. 255.

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

31 Hawk. P. C. 543.

* Villars v. Monsley; Holt on libel, 216, 2 Wils. 403.

R. v. Cooper, 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?]

S. D. Art. 270.

7 [R. v. Burdett, 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.] See also R. v. Adams, L. R. 22 Q. B. D. 66, where the conviction of the defendant for having published to a young woman of virtuous character a defamatory libel by sending to her address a letter in which he proposed that she should for a sum of money surrender her chastity to him, was sustained.

8 [Emmens v. Pottle, L. R. 16 Q. B. D. 354.] R. v. Judd, 37 W. R. 143.

[Cases in Folkard's Starkie, 427-8; and especially R. v. Almon, 5 Burr. 2686.]

[bits 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

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,] and if proved it shall be a good defence, [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 shewing 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.

3

(2.) 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 (quære).

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 seils a libellous book over the counter in

1 R. S. C. c. 163, s. 5. [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 as to the rule before the statute.] The words " and if proved it shall be a good defence" are not in the Act of the United Kingdom.

2 [R. v. Holbrook, L. R. 4 Q. B. D. 42.

3 All these Illustrations are founded on R. v. Burdett, 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.]

[the ordinary course of business; both the shopman and the bookseller have published the libel.

1 ARTICLE 344.

WHEN A LIBEL IS MALICIOUS.

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

3 ARTICLE 345.

PUBLICATION OF THE TRUTH.

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

Illustration.

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

1 S. D. Art. 271.

[In Bromage v. Prosser, 4 B. & C. 247, which is a leading case on the subject, Bailey, 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 six 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, etc., etc.; but a sufficiently simple and intelligible result has at last been reached by very circuitous roads. See Appendix. Note X.]

a S. D. Art. 272.

4 [Effect of 6 & 7 Vict. c. 96, s. 6.] R. S. C. c. 163, s. 4; but it must be pleaded that the defamatory matter is true and that it was for the public benefit that such matter should be published; R. v. Moylan, 19 U. C. Q. B. 521; R. v. Laurier, 11 R. L. 184; R. v. Hickson, 3 L. N. 139.

5 [R. v. Newman, 1 E. & B. 558; and see Dear. 85.]

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