2.—: Defamation in general.

Rules as to defamation generally. We now pass to the general law of defamation, which applies to both slander and libel, subject, as to slander, to the conditions and distinctions we have just gone through. Considerations of the same kind may affect the measure of damages for written defamation, though not the right of action itself.

“Implied malice.” It is commonly said that defamation to be actionable must be malicious, and the old form of pleading added “maliciously” to “falsely.” Whatever may have been the origin or the original meaning of this language, malice in the modern law signifies neither more nor less, in this connexion, than the absence of just cause or excuse; and to say that the law implies malice from the publication of matter calculated to convey an actionable imputation is only to say in an artificial form that the person who so publishes is responsible for the natural consequences of his act. “Express malice” means something different, of which hereafter.

What is publication. Evil-speaking, of whatever kind, is not actionable if communicated only to the person spoken of. The cause of action is not insult, but proved or presumed injury to reputation. Therefore there must be a communication by the speaker or writer to at least one third person; and this necessary element of the wrongful act is technically called publication. It need not amount to anything like publication in the common usage of the word. That an open message passes through the hands of a telegraph clerk, or a manuscript through those of a compositor in a printing-office, or a letter dictated by a principal is taken down in shorthand and type-written by a clerk, is enough to constitute a publication to those persons if they are capable of understanding the matters so delivered to them. The opening of a letter addressed to a firm by a clerk of that firm authorized to open letters is a publication to him. Every repetition of defamatory words is a new publication, and a distinct cause of action. The sale of a copy of a newspaper, published (in the popular sense) many years ago, to a person sent to the newspaper office by the plaintiff on purpose to buy it, is a fresh publication. It appears on the whole that if the defendant has placed defamatory matter within a person’s reach, whether it is likely or not that he will attend to the meaning of it, this throws on the defendant the burden of proving that the paper was not read, or the words heard by that person; but if it is proved that the matter did not come to his knowledge, there is no publication. A person who is an unconscious instrument in circulating libellous matter, not knowing or having reason to believe that the document he circulates contains any such matter, is free from liability if he proves his ignorance. Such is the case of a newsvendor, as distinguished from the publishers, printers, and owners of newspapers. “A newspaper is not like a fire; a man may carry it about without being bound to suppose that it is likely to do an injury”. If A is justified in making a disparaging communication about B.’s character to C. (as, under certain conditions, we shall see that he may be), it follows, upon the tendency and analogy of the authorities now before us, that this will be no excuse if, exchanging the envelopes of two letters by inadvertence, or the like, he does in fact communicate the matter to D. It has been held otherwise, but the decision was never generally accepted, and is now overruled. In fact, as had been suggested in former editions of this book, it could not stand with the earlier authorities on “publication.”

Sending a defamatory letter to a wife about her husband is a publication: “man and wife are in the eye of the law, for many purposes, one person, and for many purposes”—of which this is one—“different persons”.

Vicarious publication. On the general principles of liability, a man is deemed to publish that which is published by his authority. And the authority need not be to publish a particular form of words. A general request, or words intended and acted on as such, to take public notice of a matter, may make the speaker answerable for what is published in conformity to the general “sense and substance” of his request.

A person who is generally responsible for publication (such as an editor), and who has admitted publication, is not as a rule bound to disclose the name of the actual author.

Construction of words: innuendo. Supposing the authorship of the words complained of to be proved or admitted, many questions may remain.

The construction of words alleged to be libellous (we shall now use this term as equivalent to “defamatory,” unless the context requires us to advert to any distinction between libel and slander) is often a matter of doubt. In the first place the Court has to be satisfied that they are capable of the defamatory meaning ascribed to them. Whether they are so is a question of law. If they are, and if there is some other meaning which they are also capable of, it is a question of fact which meaning they did convey under all the circumstances of the publication in question. An averment by the plaintiff that words not libellous in their ordinary meaning or without a special application were used with a specified libellous meaning or application is called an innuendo, from the old form of pleading. The old cases contain much minute, not to say frivolous, technicality; but the substance of the doctrine is now reduced to something like what is expressed above. The requirement of an innuendo, where the words are not on the face of them libellous, is not affected by the abolition of forms of pleading. It is a matter of substance, for a plaintiff who sues on words not in themselves libellous, and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, has failed to show any cause of action. Again, explanation is required if the words have not, for judicial purposes, any received ordinary meaning at all, as being foreign, provincial, or the like. This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary meaning of the words, and a distinct further innuendo to show that they bore a special injurious meaning.

Libellous tendency must be probable in law and proved in fact. The actionable or innocent character of words depends not on the intention with which they were published, but on their actual meaning and tendency when published. A man is bound to know the natural effect of the language he uses. But where the plaintiff seeks to put an actionable meaning on words by which it is not obviously conveyed, he must make out that the words are capable of that meaning (which is matter of law) and that they did convey it (which is matter of fact): so that he has to convince both the Court and the jury, and will lose his cause if he fail with either. Words are not deemed capable of a particular meaning merely because it might by possibility be attached to them: there must be something in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind. In scholastic language, it is not enough that the terms should be “patient” of the injurious construction; they must not only suffer it, but be fairly capable of it. And it is left to the jury, within large limits, to find whether they do convey a serious imputation, or are mere rhetorical or jocular exaggeration.

Repetition and reports may be libellous. The publication is no less the speaker’s or writer’s own act, and none the less makes him answerable, because he only repeats what he has heard. Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them; slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth. “A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion,” and “as great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander”. Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all.

From this principle it follows, as regards spoken words, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A.. As to the defendant’s belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man utters defamatory matter at his own peril.