Chap. III. merely repeated what he heard someone else say, since " as great an injury may accrue from " the wrongful repetition, as from the first publication or utterance of the slander. The person who repeats it may give greater weight to the calumny, and may be actuated by greater malice than the original utterer (i). The law as to what defamatory words are actionable per se, as well as to what constitutes special damage when they are not so actionable, has for a long time been uncertain and contradictory, and even at the present day can hardly be considered to be in a very satisfactory state. In 1703 Holt, C. J., speaking of actions for slander, observes, "The opinions of late times have been in many ways different from those of former days in relation to actions for words, and judgments have gone different ways. . . . but for my part, whenever words tend to take away a man's reputation, I will encourage such actions, because so doing will constitute much to the preservation of the peace" (j). In 1862 the question as to what constituted special damage, so as to afford a foundation for an action for defamatory words not actionable per se, was fully discussed in the House of Lords, in the case of Lynch v. Knight, 9 H. L. C. 577. In the course of his judgment, Lord Wensleydale observes (at p. 600), "In the case of Vicars v. Wilcocks, I must say the rules laid down by Lord Ellenborough are too restricted. I am much influenced by the able reasoning of Mr. Justice Christian. I strongly incline to agree with him, that to make the words actionable, by reason of special damage, the consequence must be such as, taking human nature as it is, with its infirmities, and having regard to the relationship of the parties concerned, might fairly and reasonably have been anticipated, and feared would follow from the speaking of the words, not what would reasonably follow, or we might think ought to follow." In 1863 Lord Blackburn (then Blackburn, J.), observes (k), speaking as to what constitutes special damage in the case of a defamatory statement respecting a woman, "It must be owned that the law on this subject does not stand upon a very satisfactory footing." The rule which is now acted upon in this class of cases appears (i) M'Pherson v. Daniels, 10 B. & C. (k) Roberts v. Roberts, 33 L. J. Q. B at p. 251. to be that laid down in the Court of Exchequer, in Lumby Chap. III. v. Allday, 1 C. & J. 305, where Bayley, B., says, "Every authority which I have been able to find, either shows the want of some general requisite, as honesty, capacity, fidelity or the like; or connects the imputation with the plaintiff's office, trade or business" (1). A statement, false and malicious, but not in itself defamatory, whereby a person may, under certain circumstances suffer damage, will not support an action for defamation (1), words merely conveying suspicion are not sufficient to sustain an action (m). Whether the words complained of are capable of a defamatory Innuendo. meaning is a question for the Court (n), whether they were, on the particular occasion, used with such a meaning, is a question for the jury (0). Words are primâ facie to be construed in their ordinary sense (p), but where they are innocent or uncertain in their natural meaning, it is necessary to add a statement of the meaning intended by the words whereby they became actionable; this statement is called the innuendo (q). In cases of this kind it was formerly necessary for the plaintiff to set out in his pleadings, by way of inducement, a prefatory averment of the meaning of the words, and then, by innuendo, to allege that they conveyed that meaning. This, however, is now rendered unnecessary by the Common Law Procedure Act, 1852, s. 61, which provides that "where words set forth, with or without the alleged meaning, show a cause of action, it shall be sufficient" (r). To support an action for libel or slander, the defamatory Malice. matter must be false and malicious; if it is proved to be false in fact, it is presumed to be malicious in law (8). "Malice, in Distinction common acceptation," observes Bayley, J., means ill-will against a person, but in its legal sense it means a wrongful act fact. done intentionally without just cause or excuse (t). (1) See Miller v. David, L. R. 9 C. P. 118, decided in 1874. (ll) Miller v. David, supra. 156. (n) Blagg v. Sturt, 10 Q. B. 899; Hunt v. Goodlake, 43 L. J. C. P. 54; Mulligan v. Cole, L. R. 10 Q. B. 549. (0) Broome v. Goslen, 1 C. B. 728; Watkin v. Hall, L. R. 3 Q. B. 396. (p) Daines v. Hartley, 3 Ex. 200 Capital & Counties Bank v. Henty, App. Cas. 741. E If I give a (9) Sweetapple v. Jesse, 5 B. & Ad. 27. (r) Hemmings v. Garson, 27 L. J. Q. B. 252. See Bullen & Leake, Pleading (3rd ed.), p. 215. (s) Haise v. Wilson, 9 B. & C. 643; Fisher v. Clement, 10 B. & C. 475; Baylis v. Lawrence, 11 A. & E. 920; Huntley v. Ward, 6 C. B. N. S. 514; Darby v. Ouseley, 1 H. & N. 1 ; 25 L. J. Ex. 227. (t) Per Martin, B., Johnson v. Emmerson, L. R. 6 Ex. at p. 373; per Blackburn, J., Reg. v. Pembleton, L. R. 2 C. C. R., at p. 122. between malic in law and in Chap. III. perfect stranger a blow likely to produce death, I do it of malice, because I do it intentionally, and without just cause or excuse. If I maim cattle without knowing whose they are, or if I poison a fishery without knowing the owner, I do it of malice, because it is a wrongful act done intentionally. And if I traduce a man, whether I know him or not, and whether I intend to do him an injury or not, the law considers it as done of malice, because it is wrongful and intentional. It equally works an injury, whether I meant to produce an injury or not, and I had no legal excuse for the slander; there shall be a remedy against me for the injury it produces. And the law recognises the distinction. between those two descriptions of malice-malice in fact and malice in law, in actions for slander" (tt). Defences. Privileged statements. Absolute or qualified. Absolute privilege. The two most ordinary defences to an action for defamation are, either that the statement complained of was a privileged communication, or that it was justified, i.e., true in fact. The privilege with which certain statements are clothed, is either absolute or qualified. The privilege is absolute when it attaches to the office or position which a person holds, or to the document in which it is contained, and such privilege cannot be avoided, even by proof of actual malice (u). The privilege is qualified when the statement is made in discharge of a duty, or with reference to a matter of public interest, and is taken away where actual malice can be shown. Absolute privilege attaches to all words uttered by judges (x), counsel, and advocates (y), and witnesses (~) in the course of legal proceedings before a Court of Justice, for "neither party, witness, counsel, jury, or judge can be put to answer civilly or criminally for words spoken in office " (a). The object of this immunity, as stated in the judgment of the Privy Council in Hart v. Gumpach (b), is "to secure the free and fearless discharge of high public duty in the administration of justice." It also attaches to observations made by a coroner when Thwaites, 3 B. & C. 24; Houlden v. (y) Munster v. Lamb, 11 Q. B. D. 588; Hodgson v. Scarlett, 1 B. & A. 332 ; Needham v. Dowling, 15 L. J. C. P. 15. (2) Seaman v. Netherclift, 2 C. P. D. 53; 46 L. J. C. P. 128. (a) Per Ld. Mansfield, in Rex v. Skinner, Lofft, 55. (b) L. R. 4 P. C. at p. 465. holding an inquest (c), to statements made by an officer when giving Chap. III. evidence before a Military Court of Inquiry (d), and to evidence given by a witness before a select Committee of the House of Commons (e). All statements made in an affidavit sworn in the course of a judicial proceeding are absolutely privileged (ƒ), so also are reports made by a military officer in the ordinary execution of his duty (g). All papers and proceedings published by order of Parliament, are absolutely privileged by statute (h). A qualified privilege attaches to all communications made in Qualified discharge of a duty, whether legal or moral, and if "made bond privilege. fide upon any subject-matter, in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contains criminating matter, which without this privilege would be slanderous and actionable. The duty cannot be confined to legal duties, which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation (i). Actual malice, or as it is sometimes called "malice in fact," to distinguish it from "malice in law" is thus defined by Parke, B., in Wright v. Woodgate (k), wherein he says, "The proper meaning of a privileged communication is only this; that the occasion on which the communication was made rebuts the inference primá facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, that the defendant was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made." (f) Henderson v. Bromhead, 4 H. & N. 569; 28 L. J. Ex. 360; Revis v. Smith, 18 C. B. 126; 25 L. J. C. P. 195; Kennedy v. Hilliard, 10 Ir. C. L. R. 195. (g) Dawkins v. Lord Paulet, L. R. 5 Q. B. 94; 39 L. J. Q. B. 53. So held by the majority of the Court, Mellor and Lush, JJ., Cockburn, C.J., dissenting. (h) 3 & 4 Vict. c. 81, which enacts that proceedings, criminal or civil, against (i) Per Ld. Campbell, Harrison v. Definition of actual malice. Chap. III. Communica when made in Whether or not the occasion is privileged is a question of law for the judge (1); whether there is actual malice is a question of fact for the jury (m). The onus lies upon the plaintiff to prove actual malice (n). The principle on which it depends, whether words or writings, prima facie actionable, are justified by the occasion on which they are published, so as to put the plaintiff on proof of actual malice has been laid down in Toogood v. Spyring (0), by Parke, B., in the following terms: "The law considers such publication as malicious, unless it is justly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his own interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from the unauthorized communication, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits." "The rule," says Lord Campbell, C. J., "is that if the occasion be such as repels the presumption of malice, the communication is privileged, and the plaintiff must then, if he can, give evidence of malice" (p). In order to entitle the plaintiff to have this issue submitted to the jury, it is not necessary that the evidence should be such as necessarily leads to the conclusion that malice existed, or that it should be inconsistent with the non-existence of malice; but it is necessary that the evidence should raise a probability of malice and be more consistent with its existence than with its nonexistence (q). Communications are privileged when made in discharge of a tions privileged duty. Thus, where the directors of a company published to the discharge of a shareholders a report which contained reflections upon the character of the plaintiff, who was the manager to the company, duty. (1) Henwood v. Harrison, L. R. 7 C. P., judgment at p. 626. (m) Dickson v. Earl of Wilton, 1 F. & F. 426; Cook v. Wildes, 24 L. J. Q. B. 367; Hart v. Gumpach, L. R. 4 H. L. 439. (n) Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495. (0) 1 C. M. & R., at p. 193. (p) Taylor v. Hawkins, 16 Q. B. at p. 321; 20 L. J. Q. B. at p. 314. (q) Somerville v. Hawkins, 10 C. B. 590; Harris v. Thompson, 13 C. B. 333; Taylor v. Hawkins, 16 Q. B. 308; Spill v. Maule, L. R. 4 Ex. 232; Laughton v. Bishop of Sodor and Man, supra. |
