3.—: Exceptions.

Exceptions: fair comment. We now have to mention the conditions which exclude, if present, liability for words apparently injurious to reputation.

Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situation; and it is not correct to speak of utterances protected by it as being privileged. A man is no more privileged to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action with an excuse, but no cause of action at all. “The question is not whether the article is privileged, but whether it is a libel”. This is settled by the leading case of Campbell v. Spottiswoode, confirmed by the Court of Appeal in Merivale v. Carson. On the other hand, the honesty of the critic’s belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. Whatever goes beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of “fair criticism”. One test very commonly applicable is the distinction between action and motive; public acts and performances may be freely censured as to their merits or probable consequences, but wicked or dishonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. “Where a person has done or published anything which may fairly be said to have invited comment . . . . every one has a right to make a fair and proper comment; and as long as he keeps within that limit, what he writes is not a libel; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment; but it cannot in itself prevent the matter being libellous”.

The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed. On principle it seems that the motive is immaterial; for if the criticism be in itself justifiable, there is nothing to complain of, unless it can be said that comment proceeding from an indirect and dishonest intention to injure the plaintiff is not criticism at all. Evidence tending to show the presence of improper motives might well also tend to show that the comment was not fair in itself, and thus be material on either view; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying there is no evidence of the comment being otherwise than fair.

What is open to comment, matter of law. What acts and conduct are open to public comment is a question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types.

The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs, of those in authority, whether imperial or local, in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like.

Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits.

Whether comment is fair, matter of fact (if libellous construction possible). What is actually fair criticism is a question of fact, provided the words are capable of being understood in a sense beyond the fair (that is, honest) expression of an unfavourable opinion, however strong, on that which the plaintiff has submitted to the public: this is only an application of the wider principle above stated as to the construction of a supposed libel.

In literary and artistic usage criticism is hardly allowed to be fair which does not show competent intelligence of the subject-matter. Courts of justice have not the means of applying so fine a test: and a right of criticism limited to experts would be no longer a common right but a privilege.

The right of fair criticism will, of course, not cover untrue statements concerning alleged specific acts of misconduct, or purporting to describe the actual contents of the work being criticised.

Justification on ground of truth. Defamation is not actionable if the defendant shows that the defamatory matter was true; and if it was so, the purpose or motive with which it was published is irrelevant. For although in the current phrase the statement of matter “true in substance and in fact” is said to be justified, this is not because any merit is attached by the law to the disclosure of all truth in season and out of season (indeed it may be a criminal offence), but because of the demerit attaching to the plaintiff if the imputation is true, whereby he is deemed to have no ground of complaint for the fact being communicated to his neighbours. It is not that uttering truth always carries its own justification, but that the law bars the other party of redress which he does not deserve. Thus the old rule is explained, that where truth is relied on for justification, it must be specially pleaded; the cause of action was confessed, but the special matter avoided the plaintiff’s right. “The law will not permit a man to recover damages in respect of an injury to a character which he either does not or ought not to possess”. This defence, as authority and experience show, is not a favoured one. To adopt it is to forego the usual advantages of the defending party, and commit oneself to a counter-attack in which only complete success will be profitable, and failure will be disastrous.

Must be substantially complete. What the defendant has to prove is truth in substance, that is, he must show that the imputation made or repeated by him was true as a whole and in every material part thereof. He cannot justify part of a statement, and admit liability for part, without distinctly severing that which he justifies from that which he does not. What parts of a statement are material, in the sense that their accuracy or inaccuracy makes a sensible difference in the effect of the whole, is a question of fact.

There may be a further question whether the matter alleged as justification is sufficient, if proved, to cover the whole cause of action arising on the words complained of; and this appears to be a question of law, save so far as it depends on the fixing of that sense, out of two or more possible ones, which those words actually conveyed. It is a rule of law that one may not justify calling the editor of a journal a “felon editor” by showing that he was once convicted of felony. For a felon is one who has actually committed felony, and who has not ceased to be a felon by full endurance of the sentence of the law, or by a pardon; not a man erroneously convicted, or one who has been convicted and duly discharged. But it may be for a jury to say whether calling a man a “convicted felon” imputed the quality of felony generally, or only conveyed the fact that at some time he was convicted. Where the libel charges a criminal offence with circumstances of moral aggravation, it is not a sufficient justification to aver the committing of the offence without those circumstances, though in law they may be irrelevant, or relevant only as evidence of some element or condition of the offence. The limits of the authority which the Court will exercise over juries in handling questions of “mixed fact and law” must be admitted to be hard to define in this and other branches of the law of defamation.

Defendant’s belief immaterial. Apparently it would make no difference in law that the defendant had made a defamatory statement without any belief in its truth, if it turned out afterwards to have been true when made: as, conversely, it is certain that the most honest and even reasonable belief is of itself no justification. Costs, however, are now in the discretion of the Court.

Immunity of members of Parliament and judges. In order that public duties may be discharged without fear, unqualified protection is given to language used in the exercise of parliamentary and judicial functions. A member of Parliament cannot be lawfully molested outside Parliament by civil action, or otherwise, on account of anything said by him in his place in either House. An action will not lie against a judge for any words used by him in his judicial capacity in a court of justice. It is not open to discussion whether the words were or were not in the nature of fair comment on the matter in hand, or otherwise relevant or proper, or whether or not they were used in good faith.

Other persons in judicial proceedings. Parties, advocates, and witnesses in a court of justice are under the like protection. They are subject to the authority of the Court itself, but whatever they say in the course of the proceedings and with reference to the matter in hand is exempt from question elsewhere. It is not slander for a prisoner’s counsel to make insinuations against the prosecutor, which might, if true, explain some of the facts proved, however gross and unfounded those insinuations may be; nor for a witness after his cross-examination to volunteer a statement of opinion by way of vindicating his credit, which involves a criminal accusation against a person wholly unconnected with the case. The only limitation is that the words must in some way have reference to the inquiry the Court is engaged in. A duly constituted military court of inquiry is for this purpose on the same footing as an ordinary court of justice. So is a select committee of the House of Commons. Statements coming within this rule are said to be “absolutely privileged.” The reason for precluding all discussion of their reasonableness or good faith before another tribunal is one of public policy, laid down to the same effect in all the authorities. The law does not seek to protect a dishonest witness or a reckless advocate, but deems this a less evil than exposing honest witnesses and advocates to vexatious actions.

Reports of officers, &c. As to reports made in the course of naval or military duty, but not with reference to any pending judicial proceeding, it is doubtful whether they come under this head or that of “qualified privilege.” A majority of the Court of Queen’s Bench has held (against a strong dissent), not exactly that they are “absolutely privileged,” but that an ordinary court of law will not determine questions of naval or military discipline and duty. But the decision is not received as conclusive.

Qualified immunity of “privilege l communications.” There is an important class of cases in which a middle course is taken between the common rule of unqualified responsibility for one’s statements, and the exceptional rules which give, as we have just seen, absolute protection to the kinds of statements covered by them. In many relations of life the law deems it politic and necessary to protect the honest expression of opinion concerning the character and merits of persons, to the extent appropriate to the nature of the occasion, but not necessary to prevent the person affected from showing, if he can, that an unfavourable opinion expressed concerning him is not honest. Occasions of this kind are said to be privileged, and communications made in pursuance of the duty or right incident to them are said to be privileged by the occasion. The term “qualified privilege” is often used to mark the requirement of good faith in such cases, in contrast to the cases of “absolute privilege” above mentioned. Fair reports of judicial and parliamentary proceedings are put by the latest authorities in the same category. Such reports must be fair and substantially correct in fact to begin with, and also must not be published from motives of personal ill-will; and this although the matter reported was “absolutely privileged” as to the original utterance of it.

Conditions of the privilege. The conditions of immunity may be thus summed up:—

The occasion must be privileged; and if the defendant establishes this, he will not be liable unless the plaintiff can prove that the communication was not honestly made for the purpose of discharging a legal, moral or social duty, or with a view to the just protection of some private interest or of the public good by giving information appearing proper to be given, but from some improper motive and without due regard to truth.

Such proof may consist either in external evidence of personal ill-feeling or disregard of the truth of the matter, or in the manner or terms of the communication, or acts accompanying and giving point to it, being unreasonable and improper, “in excess of the occasion,” as we say.

“Express malice.” The rule formerly was, and still sometimes is, expressed in an artificial manner derived from the style of pleading at common law.

The law, it is said, presumes or implies malice in all cases of defamatory words; this presumption may be rebutted by showing that the words were uttered on a privileged occasion; but after this the plaintiff may allege and prove express or actual malice, that is, wrong motive. He need not prove malice in the first instance, because the law presumes it; when the presumption is removed, the field is still open to proof. But the “malice in law” which was said to be presumed is not the same as the “express malice” which is matter of proof. To have a lawful occasion and abuse it may be as bad as doing harm without any lawful occasion, or worse; but it is a different thing in substance. It is better to say that where there is a duty, though of imperfect obligation, or a right, though not answering to any legal duty, to communicate matter of a certain kind, a person acting on that occasion in discharge of the duty or exercise of the right incurs no liability, and the burden of proof is on those who allege that he was not so acting.

What are privileged occasions. The occasions giving rise to privileged communications may be in matters of legal or social duty, as where a confidential report is made to an official superior, or in the common case of giving a character to a servant; or the communications may be in the way of self-defence, or the defence of an interest common to those between whom the words or writing pass; or they may be addressed to persons in public authority with a view to the exercise of their authority for the public good; they may also be matter published in the ordinary sense of the word for purposes of general information.

Moral or social duty. As to occasions of private duty; the result of the authorities appears to be that any state of facts making it right in the interests of society for one person to communicate to another what he believes or has heard regarding any person’s conduct or character will constitute a privileged occasion.

Answers to confidential inquiries, or to any inquiries made in the course of affairs for a reasonable purpose, are clearly privileged. So are communications made by a person to one to whom it is his especial duty to give information by virtue of a standing relation between them, as by a solicitor to his client about the soundness of a security, by a father to his daughter of full age about the character and standing of a suitor, and the like. Statements made without request and apart from any special relation of confidence may or may not be privileged according to the circumstances; but it cannot be prudently assumed that they will be. The nature of the interest for the sake of which the communication is made (as whether it be public or private, whether it is one touching the preservation of life, honour, or morals, or only matters of ordinary business), the apparent importance and urgency of the occasion, and other such points of discretion for which no general rule can be laid down, will all have their weight; how far any of them will outweigh the general presumption against officious interference must always be more or less doubtful.

Self-protection. Examples of privileged communications in self-protection, or the protection of a common interest, are a warning given by a master to his servants not to associate with a former fellow-servant whom he has discharged on the ground of dishonesty; a letter from a creditor of a firm in liquidation to another of the creditors, conveying information and warning as to the conduct of a member of the debtor firm in its affairs. The privilege of an occasion of legitimate self-interest extends to a solicitor writing as an interested party’s solicitor in the ordinary course of his duty. The holder of a public office, when an attack is publicly made on his official conduct, may defend himself with the like publicity.

Information for public good. Communications addressed in good faith to persons in a public position for the purpose of giving them information to be used for the redress of grievances, the punishment of crime, or the security of public morals, are in like manner privileged, provided the subject-matter is within the competence of the person addressed. The communication to an incumbent of reports affecting the character of his curate is privileged, at all events if made by a neighbour or parishioner; so are consultations between the clergy of the immediate neighbourhood arising out of the same matter.

Fair reports. Fair reports (as distinguished from comment) are a distinct class of publications enjoying the protection of “qualified privilege” to the extent to be mentioned. The fact that imputations have been made on a privileged occasion will, of course, not exempt from liability a person who repeats them on an occasion not privileged. Even if the original statement be made with circumstances of publicity, and be of the kind known as “absolutely privileged,” it cannot be stated as a general rule that republication is justifiable. Certain specific immunities have been ordained by modern decisions and statutes. They rest on particular grounds, and are not to be extended. Matter not coming under any of them must stand on its own merits, if it can, as a fair comment on a subject of public interest.

Parliamentary papers. By statute (3 & 4 Vict. c. 9, ad 1840) the publication of any reports, papers, votes, or proceedings of either House of Parliament by the order or under the authority of that House is absolutely protected, and so is the republication in full. Extracts and abstracts are protected if in the opinion of the jury they were published bona fide and without malice.

Parliamentary debates and judicial proceedings. Fair reports of parliamentary and public judicial proceedings are treated as privileged communications. It has long been settled that fair and substantially accurate reports of proceedings in courts of justice are on this footing. As late as 1868 it was decided that the same measure of immunity extends to reports of parliamentary debates, notwithstanding that proceedings in Parliament are technically not public, and, still later, that it extends to fair reports of the quasi-judicial proceedings of a body established for public purposes, and invested with quasi-judicial authority for effecting those purposes. In the case of judicial proceedings it is immaterial whether they are preliminary or final (provided that they are such as will lead to some final decision) and whether contested or ex parte, and also whether the Court actually has jurisdiction or not, provided that it is acting in an apparently regular manner. The report need not be a report of the whole proceedings, provided it gives a fair and substantially complete account of the case: but whether it does give such an account has been thought to be a pure question of fact, even if the part which is separately reported be a judgment purporting to state the facts. The report must not in any case be partial to the extent of misrepresenting the judgment. It may be libellous to publish even a correct extract from a register of judgments in such a way as to suggest that a judgment is outstanding when it is in fact satisfied; but a correct copy of a document open to the public is not libellous without some such further defamatory addition. By statute “a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial authority” is, “if published contemporaneously with such proceedings,” privileged: which seems to mean absolutely privileged, as otherwise the statute would not add to the protection already given by the common law. The rule does not extend to justify the reproduction of matter in itself obscene, or otherwise unfit for general publication, or of proceedings of which the publication is forbidden by the Court in which they took place. The burden of proof is on the defendant to show that the report is fair and accurate. But if it really is so, the plaintiff’s own evidence will often prove that the facts happened as reported.

Volunteered reports. An ordinary newspaper report furnished by a regular reporter is all but conclusively presumed, if in fact fair and substantially correct, to have been published in good faith; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal imputations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action.

Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commissions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888. A public meeting is for this purpose “any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted.” The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover “the publication of any matter not of public concern, and the publication of which is not for the public benefit,” is not protected.

Excess of privilege. In the case of privileged communications of a confidential kind, the failure to use ordinary means of ensuring privacy—as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necessity—will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one. But the privilege of a person making a statement as matter of public duty at a meeting of a public body is not affected by unprivileged persons being present who are not there at his individual request or desire, or in any way under his individual control, though they may not have any strict right to be there, newspaper reporters for example. It is now decided that if a communication intended to be made on a privileged occasion is by the sender’s ignorance (as by making it to persons whom he thinks to have some duty or interest in the matter, but who have none), or mere negligence (as by putting letters in wrong envelopes) delivered to a person who is a stranger to that occasion, the sender has not any benefit of privilege.

Honest belief is not necessarily reasonable belief. Where the existence of a privileged occasion is established, we have seen that the plaintiff must give affirmative proof of malice, that is, dishonest or reckless ill-will, in order to succeed. It is not for the defendant to prove that his belief was founded on reasonable grounds, and there is no difference in this respect between different kinds of privileged communication. To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protection of the rule. It has been found difficult to impress this distinction upon juries, and the involved language of the authorities about “implied” and “express” malice has, no doubt, added to the difficulty. The result is that the power of the Court to withhold a case from the jury on the ground of a total want of evidence has on this point been carried very far. In theory, however, the relation of the Court to the jury is the same as in other questions of “mixed fact and law.” Similar difficulties have been felt in the law of Negligence, as we shall see under that head.

Power of jury in assessing damages. In assessing damages the jury “are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdict. They may consider what his conduct has been before action, after action, and in Court during the trial.” And the verdict will not be set aside on the ground of the damages being excessive, unless the Court thinks the amount such as no twelve men could reasonably have given.

Special procedure in actions for newspaper libels. Lord Campbell’s Act (6 & 7 Vict. c. 96, ss. 1, 2), contains special provisions as to proving the offer of an apology in mitigation of damages in actions for defamation, and payment into court together with apology in actions for libel in a public print.

Limits of interrogatories in action for libel. Where money has been paid into court in an action for libel, the plaintiff is not entitled to interrogate the defendant as to the sources of his information or the means used to verify it.

Bad reputation of plaintiff. A plaintiff’s general bad repute cannot be pleaded as part of the defence to an action for defamation, for it is not directly material to the issue, but can be proved only in mitigation of damages.

Injunctions. We have already seen that an injunction may be granted to restrain the publication of defamatory matter, but, on an interlocutory application, only in a clear case, and not where the libel complained of is on the face of it too gross and absurd to do the plaintiff any material harm. Cases of this last kind may be more fitly dealt with by criminal proceedings.