1 ARTICLE 346.

PUBLICATION OF MATTER HONESTLY BELIEVED

TO BE TRUE.

2 [The publication of a libel is not a misdemeanor if the defamatory matter published is honestly believed to be true 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,3 and 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.) 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

1 S. D. Art. 273.

2 [See Folkard's Starkie, ch. xii. 249-291. I have gone carefully through these forty-two 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, 5 E. & B. 344-348.

3 Clark v. Molyneux, L. R. 3 Q. B. D. 37.

4 Many cases as to giving characters to servants are collected and abstracted in Folkard's edition of Starkie, pp. 250-7.]

[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.

1

(2.) 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.

(3.) A writes a letter containing matter defamatory of B to C, A's mother-in-law, who is about to marry B. If A in good faith believes the imputations to be true, this is not a libel although the imputations are false.

3

(4.) The mate of a ship writes a letter to A accusing the captain, B, of drunkenness and misconduct. A (who has nothing to do with the matter) forwards the letter to the owner of the ship believing the accusation to be true and thinking himself morally bound to report it. The accusation was in fact false. It is uncertain whether A has or has not libelled B. (5.) A complains to the Privy Council of the conduct of a public officer whom the Privy Council has power to remove. If the statement is made with express malice it is libellous. *

5 ARTICLE 347.

FAIR CRITICISM.

"The publication of a libel is not a misdemeanor if the defamatory matter consist of comments upou persons who submit themselves, or upon things submitted by their authors or owners, to public criticism, provided that such comments are fair.

7 A fair comment is a comment which is either true, or

1[Beutson v. Skene, 5 H. & N. 838. This was an action for verbal slander, but the principle is the same.

2 Todd v. Hawkins, 8 C. & P. 88.

3 Coxhead v. Richards, 2 C. B. 569. The judges in this case were equally divided, Tindal, C.J., and Erle, J., thought the letter was not a libel; Coltman, J., and Cresswell, J., thought it was.

4 Proctor v. Webster, L. R. 16 Q. B. D. 112.]

S. D. Art. 274.

6 [Folkard's Starkie, ch. xi. pp. 223-248.

7 Hunter v. Sharpe, 4 F. & F. 983; Folkard's Starkie, 232.] Upon an indictment for libel published in a newspaper at the defendant's instance, it was held not to be a defence that the editor of the newspaper (who was not indicted) before inserting the libel shewed it to the prosecutor, who did not express any wish to suppress publication, but wrote a reply, which was also inserted in such newspaper; R. v. McElderry, 19 U. C. Q. B. 163.

[which, if false, expresses the real opinion of its author (as to the existence of matter of fact or otherwise), such opinion having been formed with a reasonable degree of care and on reasonable grounds.

1

1 Every person who takes a public part in public affairs submits his conduct therein to criticism.

2 Every person who publishes any book or other literary production, or any work of art, or any advertisement of goods, submits that book, or literary production, or work of art, or advertisement to public criticism.

3 Every person who takes part in any dramatic performance, or other public entertainment, submits himself to public criticism to the extent to which he takes part in it.

4

Illustrations.

(1.) A, by direction of the Lords of the Admiralty, publishes to the world at large an official report made to the Lords of the Admiralty by B, which report contains matter defaming the character of C as a naval architect. C, having submitted to the Lords of the Admiralty proposals and plans for converting wooden ships of war into armoured ships of war, and the official report being part of a collection of papers intended to give the public information as to the construction of ships of war, and the publication being made in good faith, A has not libelled B.

5

(2.) A publishes a caricature of B, an author, intended to convey the impression that his books are dull and ridiculous. A has not libelled B.

(3.) 6 B exhibits a picture at the annual exhibition of the Royal Academy. A writes a criticism on the pictures so exhibited, and calls B's picture a mere daub." If this expresses A's honest opinion, A has not libelled B.

66

(4.) B publishes an advertisement about a bag sold by him and called "the Bag of Bags." A publishes a criticism on the advertisement, say

1 [Illustration (1).

2 Illustrations (2), (3), and (4).

3 Dibdin v. Bostock, 1 Esp. 28.

4 Henwood v. Harrison, L. R. 7 C. P. 606.

5 Carr v. Hood, 1 Camp. 354; Folkard's Starkie, 225-7; and see Tabart v. Tipper, 1 Camp. 350. Carr v. Hood is a strong case, because the caricature ridiculed not only the book but the author. It is one thing to say, "This book is absurd," another to say, "You are an absurd person because you have written this absurd book." This decision would cover (within limits) common political caricatures.

Thompson v. Shackell, 1 M. & M. 187; Folkard's Starkie, 228. 7 Jenner v. A'Beckett, L. R. 7. Q. B. 11; Folkard's Starkie, 231.]

[ing, "The title is very silly, very slangy, and very vulgar." This may be a libel if it is meant to convey an imputation of B's way of managing his business, but is not a libel if it is only an expression of A's honest opinion as to the title given by B to his bag.

1 ARTICLE 348.

PARLIAMENTARY PROCEEDINGS AND FAIR COMMENTS THEREON.

2 It is not a misdemeanor to publish such of the reports, papers, votes or proceedings of] the Senate or House of Commons or of any Legislative Council, Legislative Assembly or House of Assembly as such Senate, House, Council or Assembly deems [fit or necessary to be published; or

3

any extract from or abstract of such report, paper, votes or proceedings, if it is shewn by the party accused that such extract or abstract was published bona fide and without malice; or

5

a fair report of any debate in either House of Parliament, though any such publication may contain matter defamatory of the character of individuals; (SUBMITTED) provided that the publisher is not actuated in making the publication by any indirect motive.]

1 S. D. Art. 275.

2 R. S. C. c. 11, ss. 6, 7; c. 163, ss. 6. 7. [3 & 4 Vict. c. 9. ss. 1, 2. The Act contains directions as to proof of reports, &c.; see also Stockdale v. Hansard, 9 A. & E. 1. The existence of a narrower privilege than that conferred by the statute, viz., the privilege of publishing libellous papers to members of Parliament for their use, was never disputed. See Lake v. King, 1 Wms. Saunders, 137.]

3 R. S. C. c. 11, s. 8; c. 163, s. 8. 3 & 4 Vict. c. 9, s. 3.

4 [The word "malice" must here have its popular sense. In this connection, however, it has almost no meaning. A publishes an abstract of a parliamentary paper, which destroys the character of his deadly enemy B. He rejoices in the prospect of ruining B's character, and so publishes both bona fide and with malice. It is absurd to say that he is indictable, yet if he is not, what is the sense of the word "malice"? It seldom has any meaning except a misleading one. It refers not to intention, but to motive, and in almost all legal inquiries intention, as distinguished from motive, is the important matter. Another objection to it is that its popular meaning is not barely ill will, but an ill will which it is immoral to feel. No one would describe legitimate indignation as "malice." The word is entirely avoided in the Indian Penal Code.

5 Wason v. Walter, L. R. 4 Q. B. 73.

❝ Analogy of Stevens v Sampson, L. R. 5 Ex. Div. 58.]

1 ARTICLE 349.

REPORTS OF PROCEEDINGS OF PUBLIC MEETINGS.

2 It is a misdemeanor for any person to publish any report of the proceedings of a public meeting if it contains matter defamatory of the character of individuals, even though the report is fair and accurate and the object of publication is to give information to the public, and not to injure the person to whom the defamatory matter relates.

3 ARTICLE 350.

PUBLICATION IN A COURT OF JUSTICE.

[It is not a misdemeanor for a judge, counsel, witness or party to publish anything whatever in a judicial proceeding before a court of competent jurisdiction, or in the discharge of any military duty, even if the person publishing knows the matter published to be false, and publishes it in order to injure the person to whom it relates.

4

Illustrations.

(1.) A, before justices of the peace, exhibits articles of the peace against B, containing false and scandalous charges against B, in order to cause B to be bound over to good behaviour. This is not a libel.

(2.) 5 A in an action between himself and B, falsely and maliciously swears an affidavit, charging C with fraud. The affidavit is not a libel.

1 S. D. Art. 275 A.

2 Davison v. Duncan, 7 E. & B. 231. By 44 & 45 Vict. c. 60, s. 2, the law in England is changed so far as it relates to the publication in a newspaper of any such report which is now privileged, if the meeting is lawfully convened for a lawful purpose and open to the public, and if such report was fair and accurate and published without malice, and if the publication of the matter complained of is for the public benefit, and if the defendant does not refuse to insert in the newspaper in which the report appeared a reasonable letter or document of explanation or contradiction by or on behalf of the prosecutor. See also 45 Vict. (Ontario) c. 9; 50 Vict. (Man.) c. 22.

3 S. D. Art. 276.

4 Cutler v. Dixon, 4 Co. 14 b.

[ This is stated most strongly and explicitly in Munster v. Lamb, L. R. 11 Q. B. D. 588; Henderson v. Broomhead, 4 H. & N. 569, 576; see, too, Dawkins v. Lord Rokeby. L. R. 8 Q. B. 255, and authorities cited there. Compare Seaman v. Netherclift, L. R. 1 C. P. Div. 540, for an illustration of the same principle as regards slander.]