1.—: Slander.

When slander is actionable. Slander is an actionable wrong when special damage can be shown to have followed from the utterance of the words complained of, and also in the following cases:

Where the words impute a criminal offence.

Where they impute having a contagious disease which would cause the person having it to be excluded from society.

Where they convey a charge of unfitness, dishonesty, or incompetence in an office of profit, profession, or trade, in short, where they manifestly tend to prejudice a man in his calling.

Spoken words which afford a cause of action without proof of special damage are said to be actionable per se: the theory being that their tendency to injure the plaintiff’s reputation is so manifest that the law does not require evidence of their having actually injured it. There is much cause however to deem this and other like reasons given in our modern books mere afterthoughts, devised to justify the results of historical accident: a thing so common in current expositions of English law that we need not dwell upon this example of it.

Meaning of “prima facie libellous.” No such distinctions exist in the case of libel: it is enough to make a written statement primâ facie libellous that it is injurious to the character or credit (domestic, public, or professional) of the person concerning whom it is uttered, or in any way tends to cause men to shun his society, or to bring him into hatred, contempt, or ridicule. When we call a statement prima facie libellous, we do not mean that the person making it is necessarily a wrongdoer, but that he will be so held unless the statement is found to be within some recognized ground of justification or excuse.

Such are the rules as to the actionable quality of words, if that be a correct expression. The authorities by which they are illustrated, and on which they ultimately rest, are to a great extent antiquated or trivial; the rules themselves are well settled in modern practice.

Special damage. Where “special damage” is the ground of action, we have to do with principles already considered in a former chapter: namely, the damage must be in a legal sense the natural and probable result of the words complained of. It has been said that it must also be “the legal and natural consequence of the words spoken” in this sense, that if A. speaks words in disparagement of B. which are not actionable per se, by reason of which speech C. does something to B.’s disadvantage that is itself wrongful as against B. (such as dismissing B. from his service in breach of a subsisting contract), B. has no remedy against A., but only against C.. But this doctrine is contrary to principle: the question is not whether C.’s act was lawful or unlawful, but whether it might have been in fact reasonably expected to result from the original act of A. And, though not directly overruled, it has been disapproved by so much and such weighty authority that we may say it is not law. There is authority for the proposition that where spoken words, defamatory but not actionable in themselves, are followed by special damage, the cause of action is not the original speaking, but the damage itself. This does not seem to affect the general test of liability. Either way the speaker will be liable if the damage is an intended or natural consequence of his words, otherwise not.

Repetition of spoken words. It is settled however that no cause of action is afforded by special damage arising merely from the voluntary repetition of spoken words by some hearer who was not under a legal or moral duty to repeat them. Such a consequence is deemed too remote. But if the first speaker authorized the repetition of what he said, or (it seems) spoke to or in the hearing of some one who in the performance of a legal, official, or moral duty ought to repeat it, he will be liable for the consequences.

Special damage involves a definite temporal loss. Losing the general good opinion of one’s neighbours, consortium vicinorum as the phrase goes, is not of itself special damage. A loss of some material advantage must be shown. Defamatory words not actionable per se were spoken of a member of a religious society who by reason thereof was excluded from membership: there was not any allegation or proof that such membership carried with it as of right any definite temporal advantage. It was held that no loss appeared beyond that of consortium vicinorum, and therefore there was no ground of action. Yet the loss of consortium as between husband and wife is a special damage of which the law will take notice, and so is the loss of the voluntary hospitality of friends, this last on the ground that a dinner in a friend’s house and at his expense is a thing of some temporal value. Actual membership of a club is perhaps a thing of temporal value for this purpose, but the mere chance of being elected is not: so that an action will not lie for speaking disparaging words of a candidate for a club, by means whereof the majority of the club decline to alter the rules in a manner which would be favourable to his election. “The risk of temporal loss is not the same as temporal loss”. Trouble of mind caused by defamatory words is not sufficient special damage, and illness consequent upon such trouble is too remote. “Bodily pain or suffering cannot be said to be the natural result in all persons”.

Imputations of criminal offence. As to the several classes of spoken words that may be actionable without special damage: words sued on as imputing crime must amount to a charge of some offence which, if proved against the party to whom it is imputed, would expose him to imprisonment or other corporal penalty (not merely to a fine in the first instance, with possible imprisonment in default of payment). The offence need not be specified with legal precision, indeed it need not be specified at all if the words impute felony generally. But if particulars are given they must be legally consistent with the offence imputed. It is not actionable per se to say of a man that he stole the parish bell-ropes when he was churchwarden, for the legal property is vested in him ex officio; it might be otherwise to say that he fraudulently converted them to his own use. The practical inference seems to be that minute and copious vituperation is safer than terms of general reproach, such as “thief,” inasmuch as a layman who enters on details will probably make some impossible combination.

It is not a libel as against a corporation (though it may be as against individual members or officers) to charge the body as a whole with an offence which a corporate body cannot commit.

Other charges of mere immorality not actionable. False accusation of immorality or disreputable conduct not punishable by a temporal court is at common law not actionable per se, however gross. The Slander of Women Act, 1891 (54 & 55 Vict. c. 51), has abolished the need of showing special damage in the case of “words . . . which impute unchastity or adultery to any woman or girl.” The courts might without violence have presumed that a man’s reputation for courage,Slander of Women Act. honour, and truthfulness, a woman’s for chastity and modest conduct, was something of which the loss would naturally lead to damage in any lawful walk of life. But the rule was otherwise, and remains so as regards all slander of this kind against men, and against women also as regards all charges of improper conduct short of unchastity, which yet may sometimes be quite as vexatious, and more mischievous because more plausible. The law went wrong from the beginning in making the damage and not the insult the cause of action; and this seems the stranger when we have seen that with regard to assault a sounder principle is well established.

A person who has committed a felony and been convicted may not be called a felon after he has undergone the sentence, and been discharged, for he is then no longer a felon in law.

Imputations of contagious disease. Little need be said concerning imputations of contagious disease unfitting a person for society: that is, in the modern law, venereal disease. The only notable point is that “charging another with having had a contagious disorder is not actionable; for unless the words spoken impute a continuance of the disorder at the time of speaking them, the gist of the action fails; for such a charge cannot produce the effect which makes it the subject of an action, namely, his being avoided by society”. There does not seem to be more than one reported English case of the kind within the present century.

Evil-speaking of a man in the way of his business. Concerning words spoken of a man to his disparagement in his office, profession, or other business: they are actionable on the following conditions:—They must be spoken of him in relation to or “in the way of” a position which he holds, or a business he carries on, at the time of speaking. Whether they have reference to his office or business is, in case of doubt, a question of fact. And they must either amount to a direct charge of incompetence or unfitness, or impute something so inconsistent with competence or fitness that, if believed, it would tend to the loss of the party’s employment or business. To call a stonemason a “ringleader of the nine hours system” is not on the face of it against his competence or conduct as a workman, or a natural and probable cause why he should not get work; such words therefore, in default of anything showing more distinctly how they were connected with the plaintiff’s occupation, were held not to be actionable. Spoken charges of habitual immoral conduct against a clergyman or a domestic servant are actionable, as naturally tending, if believed, to the party’s deprivation or other ecclesiastical censure in the one case, and dismissal in the other. Of a clerk or messenger, and even of a medical man, it is otherwise, unless the imputation is in some way specifically connected with his occupation. It is actionable to charge a barrister with being a dunce, or being ignorant of the law; but not a justice of the peace, for he need not be learned. It is actionable to charge a solicitor with cheating his clients, but not with cheating other people on occasions unconnected with his business. But this must not be pressed too far, for it would seem to be actionable to charge a solicitor with anything for which he might be struck off the roll, and the power of the court to strike a solicitor off the roll is not confined to cases of professional misconduct.

It makes no difference whether the office or profession carries with it any legal right to temporal profit, or in point of law is wholly or to some extent honorary, as in the case of a barrister or a fellow of the College of Physicians; but where there is no profit in fact, an oral charge of unfitness is not actionable unless, if true, it would be a ground for removal. Nor does it matter what the nature of the employment is, provided it be lawful; or whether the conduct imputed is such as in itself the law will blame or not, provided it is inconsistent with the due fulfilment of what the party, in virtue of his employment or office, has undertaken. A gamekeeper may have an action against one who says of him, as gamekeeper, that he trapped foxes. As regards the reputation of traders the law has taken a broader view than elsewhere. To impute insolvency to a tradesman, in any form whatever, is actionable. Substantial damages have been given by a jury, and allowed by the court, for a mere clerical error by which an advertisement of a dissolution of partnership was printed among a list of meetings under the Bankruptcy Act. A trading corporation may be defamed in relation to the conduct of its business.

Words indirectly causing damage to a man in his business. There are cases, though not common in our books, in which a man suffers loss in his business as the intended or “natural and probable result” of words spoken in relation to that business, but not against the man’s own character or conduct: as where a wife or servant dwelling at his place of business is charged with misbehaviour, and the credit of the business is thereby impaired: or where a statement is made about the business not in itself defamatory, but tending to a like result, such as that the firm has ceased to exist. In such a case an action lies, but is not properly an action of slander, but rather a special action (on the case in the old system of pleading) “for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.” General loss of business is sufficient “special damage” to be a cause of action in such a case.