CHAPTER XVII.

DFAMATION.

THE right of each man to the unimpaired possession of his Right of reputation and good name is recognized by the law. Reputation reputation. depends on opinion, and opinion in the main on the communication of thought and information from one man to another. He therefore who directly communicates to the mind of another matter untrue and likely in the natural course of things substantially to disparage the reputation of a third person is, on the Action of face of it, guilty of a legal wrong, for which the remedy is an action of defamation-a remedy, however, by no means commensurate with the damage that in every case may arise, but limited by many considerations of convenience and public policy. Defa- Slander. matory matter may have no existence except as it is communicated or published in some fugitive manner. Such defamation

defamation.

is called slander. Or it may be embodied in some permanent Libel. form, and in such case, its production will be one thing, its publication another. Defamation of this kind is called libel.

malice.

Prima facie the publication of defamatory matter is a cause of Falsehood an action. It is true that it is necessary for the plaintiff in his pleading to allege that the imputation published is false, and usual, though not necessary (a), to allege that it is malicious; but the burden of proof of neither of these allegations lies upon him. It is not to be assumed that any one is of bad character, and therefore defamation of an individual may be taken to be false until it is proved to be true. As for the word malicious its meaning simply is that the publication was intentional and without just cause or excuse (b). Defamation must be wilful in the Defamation same way as all torts of commission must be. The existence wilful.

(a) Per cur. Bromage v. Prosser, 4 B. & C. p. 255. And see Reg. v. Munslow, (1895) 1 Q. B. 758.

(b) Per cur. Bromage v. Prosser, 4 B. & C. p. 255.

must be

What is a

libel.

Does not depend on intention.

Language not in itself defamatory.

of just cause or excuse is for the defendant to establish either out of the mouth of the adverse witnesses or by independent proof. What constitutes such just cause or excuse remains to be considered later on. At present it is necessary to consider more fully what libel is, what slander is, and what amounts to a publication.

The term libel of course properly indicates something printed or written, but it includes also any scandalous painting, effigy, or emblem. A gallows at the doorway of some obnoxious person may be a libel upon him (a).

A man may be libelled in respect either of his personal character, or of his office or vocation. In the former case the libel must consist of matter calculated to hold him up to "hatred, contempt, or ridicule" (b). Whether it does so or not depends, not upon the intention of the offending party, but upon the probabilities of the case, upon the natural tendency of the publication, having regard to surrounding circumstances (c). If a defendant has published "what he knew, or ought to have known, was calculated to injure the plaintiff, he must be responsible for the consequences though his object might have been to injure another person than the plaintiff, or though he may have written in levity only No one can cast about firebrands and death and then escape from being responsible by saying that he/ was in sport" (d). On the other hand, the mere intention to vex and annoy will not make language defamatory which is not so in its own nature (e). An imputation of conduct not in itself really censurable, however distasteful or objectionable the conduct may be according to the notions of certain people, is not a legal injury.

(a) 5 Rep. 126; Carr v. Hood, 1 Camp. 355, n. See Eyre v. Garlick, 42 J. P. 68. In Jefferies v. Duncombe (11 East, 227), the plaintiff recovered damages against the defendant for keeping in front of the plaintiff's house a lamp burning during the daytime, "thereby intending to mark out the dwellinghouse of the plaintiff as a bawdy house." The action is described in the report as one of nuisance. It would seem, however, in substance an action of libel. And see Monson v. Tussauds, Limited,

(1894) 1 Q. B. 671.

(b) Per Parke, B., Parmiter v. Coupland, 6 M. & W/ p. 108.

(c) Haire v. Wilson, 9 B. & C. 643. (d) Per Lord Blackburn, Capital & Counties Bank v. Henty, 7 App. Cas. p. 772.

(e) The case of Nerill v. Fine Arts, &c., Insurance Co. ( (1895) 2 Q. B. 156, as to which, see below p. 488), is perhaps difficult to reconcile with the earlier authorities.

"Would it be libellous," it has been asked, "to write of a lady
of fashion, that she had been seen on the top of an omnibus, or
of a nobleman that he was in the habit of burning tallow
candles ?" (a) "There is a distinction between imputing what
is merely a breach of professional etiquette and what is illegal,
mischievous, or sinful; between, in fact, matters of taste and
matters of crime" (b). And it was accordingly held to be no libel
to write of a medical man that he met homoeopathists in con-
sultation. A homoeopathist may be a perfectly competent and
qualified practitioner, and the imputation therefore was not of
professional misconduct but simply of a breach of an arbitrary
rule. In Mawe v. Pigott (c), the plaintiff had been attacked in
the defendant's newspaper for certain denunciations of the Fenian
conspirators which he was said to have made, and it was argued
that he was exposed to hatred and contempt in the opinion of
many people, by being represented as an informer or prosecutor
or otherwise aiding in the detection of crime. "That is quite
true," says the judgment, "but we cannot be called upon to adopt
that standard. The very circumstance which will make a person
be regarded with disfavour by the criminal classes will raise his
character in the estimation of right-thinking men.
We can only
regard the estimation in which a man is held by society gene-
rally" (d). To seriously depart from the accepted rules of right-
feeling, good conduct, and prudence is either hateful
contemptible. It is therefore libellous to impute ingratitude,
hardheartedness, or insolence (e). But ridicule may be incurred
through accidental circumstances, without any suggestion of
moral blame. To apply a ludicrous nickname or to narrate an
anecdote of which the hero cuts an absurd figure may constitute
a libel (f). A mere statement that a person was suspected of
crime, without any imputation of actual guilt, may be libellous (g).

or

There is apparently nothing defamatory in an imputation of Imputation of insanity, and therefore it may be doubted whether such an impu- insanity.

(a) Per Pollock, C.B., Clay v. Roberts,

8 L. T. N. S. p. 398.

(b) Per Pollock, C.B., ibid.

(c) Ir. Rep. 4 C. L. 54.

(d) Ibid., p. 62. See too Miller v. David, L. R. 9 C. P. 118.

(e) Cox v. Lee, L. R. 4 Ex. 284;
Churchill v. Hunt, 2 B. & Ald. 685;
Clement v. Chiris, 9 B. & C. 172.

(f) Cook v. Ward, 6 Bing. 409.
(g) Monson v. Tussauds, Limited,
(1894) 1 Q. B. 671.

tation would be actionable, where not made with reference to a person in a particular office or calling, for insanity is rather a subject of pity than of any harsher feeling. No substantial distinction can be drawn between an imputation of mental disease and one of bodily disease. In Rex v. Harvey (a) indeed, where the defendant was convicted of libel for imputing to the King that he was insane, Abbott, C.J., directed the jury that "to assert falsely of his Majesty or of any other person that he labours under the affliction of mental derangement is a criminal act." But the conviction in that case is probably only to be justified upon the ground that insanity would unfit the King for his office, or upon grounds which would be inapplicable in the case of a similar Imputation of imputation upon a subject. Again, there is nothing defamatory insolvency. per se in an imputation of insolvency, for a man may lose his money by pure misfortune. And therefore, presumably, no action will lie for writing of a non-trader that he is insolvent, without more (b). To support such an action the plaintiff must, it is apprehended, lay an innuendo that the insolvency was imputed to have been caused by circumstances discreditable to him.

Libel on a man in his calling.

Where calling no longer followed.

If a libel is pointed against a man with special reference to his calling or office, the limits of defamation appear to be wider (c). The words need not be provocative of hatred, ridicule, or contempt; it is sufficient if their tendency is injurious (d). An imputation of insanity is necessarily injurious to any person in his calling, and therefore defamatory if used with reference to such calling (e). Similarly, an imputation of insolvency is actionable if made against a trader (ƒ).

No one can be libelled in respect of an office which he has ceased to fill or a vocation which he has ceased to follow, but

(a) 2 B. & C. 257. In Weldon v. Winslow (Times, 1884, March 14, et sqq.), the plaintiff sued a medical man for falsely alleging that she was insane. But, the judge having withdrawn the case from the jury on the ground that the statement was privileged, it became unnecessary to discuss the question whether the imputation was defamatory.

(b) All the cases to be found in the books in which a mere imputation of

insolvency has been held actionable are cases in which the plaintiff was a trader.

(c) Defamation of this kind is more fully considered below, pp. 480-4.

(d) Per Lord Blackburn, Capital & Counties Bank v. Henty, 7 App. Cas. p.

771.

(e) Morgan v. Lingen, 8 L. T. N. S. 800.

(f) Read v. Hudson, 1 Ld. Raym.

610.

imputations against a man in some particular relation may also affect him in his general character. If it be alleged of a retired solicitor that he was guilty of sharp practice in his profession, he is not libelled as a solicitor, for he is no longer one, but he is libelled as a man, for he is accused of dishonesty (a). But if the imputation be that he was unskilful in his profession, then it may be questioned whether from any point of view the language is actionable.

Where several persons are joined in some capacity they may be Joint injury. jointly defamed in that capacity and have a joint action for the joint injury. Thus, trading partners may recover for a libel on their solvency in respect of the damage done to their firm (b), and each individual has a separate right of action for such separate damage as he may have sustained (c). So a trading corporation may sue in its corporate capacity for a libel imputing insolvency (d) or any other matter calculated to injure it in the way of its business (e). But it is apprehended that a municipal or other non-trading corporation cannot sue for a libel in its corporate capacity, whatever the nature of the imputation may be. In the case of such a corporation any charge of misconduct must be treated as directed against the corporators as individuals (ƒ). And where several persons, though exercising an office jointly, have no joint interest to be damaged, a libel on them in their collective capacity is not a joint injury but a several injury to each one of them. In Booth v. Briscoe (g) the defendant had libelled "the trustees" of a certain charity. The several trustees joined in one action against him, and though it was assumed (h) that such joinder was permissible, it was held that each plaintiff had a separate cause of action and the damages of each ought to have been separately assessed.

To attack the reputation of a thing may be to attack' the

reputation of a person. An unfavourable review of a book may

(a) Per Parke, J., Boydell v. Jones, 4 M. & W. p. 450.

(b) Forster v. Lawson, 3 Bing. 452. (c) Robinson v. Marchant, 7 Q. B. 918.

(d) Metropolitan Saloon Omnibus Co. v. Hawkins, 4 H. & N. 87.

(e) South Hetton Coal Co, v. North

Eastern News Association, (1894) 1 Q.
B. 133; Thorley's Cattle Food Co. v.
Massam, 14 Ch. D. 763.

(f) Mayor, &c. of Manchester v.
Williams, (1891) 1 Q. B. 94.
(g) 2 Q. B. D. 496.

(h) But see Smurthwaite v. Hannay,
(1894) A. C. 494.

Libel on libel on thing may be

person.