it was held that the report was privileged, as the strictures Chap. III. upon the plaintiff were contained in the auditor's report, which it was the duty of the directors to lay before their shareholders (r). In a case where the plaintiff was a justice of the peace, and in the habit of sitting as a borough magistrate, the defendant, an elector and inhabitant, signed a memorial addressed to the Home Secretary complaining of the conduct of the plaintiff, as a justice during the election for a member to represent the borough in parliament, and praying that he would cause an enquiry to be made into the conduct of the plaintiff, and that on the allegations contained in the memorial being substantiated, he would recommend her Majesty that the plaintiff be removed from the commission of the peace. The jury having found that the memorial was bonâ fide, it was held to be a privileged communication, inasmuch as the plaintiff had both an interest and a duty in the subject matter of the communication; and the Home Secretary had a corresponding duty, a justice of the peace being appointed and removed by the sovereign (s). of servant. There are many cases where the duty is only moral or social, or as described by Blackburn, J., in Davies v. Snead (t), "a duty Character of imperfect obligation," in which the occasion is held to be privileged, as for instance, where a master answers inquiries respecting the character of a servant (u). In giving a character, it is not necessary in all cases that the information should be given in answer to an inquiry, but it is sufficient if the person giving the information bonâ fide thinks he is discharging a moral or social duty (x). Where a master in giving a character to a servant makes a statement which is not true in fact, he will not be liable to an action for defamation, unless it can be proved that either he was actuated by spite or ill-will in making it, or that it was made recklessly (y), or that he was aware that the statement was untrue when he made it. When it can be shown that the statement was (r) Lawless v. The Anglo-Egyp. Cotton Co., L. R. 4 Q. B. 262. (s) Harrison v. Bush, 5 El. & Bl. 344, 25 L. J. Q. B. 25. See also Lake v. King, 1 Wms. Saund. 131b; Fairman v. Ives, 5 B. & Ald. 642. (t) L. R. 5 Q. B. 608. (u) Weatherston v. Hawkins, 1 T. R. 110; Child v. Affleck, 9 B. & C. 403; Gardner v. Slade, 13 Q. B. 796; Fryer v. Kynnersley, 15 C. B. N. S. 422, 33 L. (x) See judgment of Jessel, M.R., in (y) Rogers v. Clifton, 3 B. & P. 591; Fountain v. Boodle, 3 Q. B. 11; James v. Boston, 2 Car, & K. 7. Chap. III. false to the knowledge of the person making it, there is clear evidence of actual malice (2). Where confidential relation established, privilege attaches. Instances of privileged occasions, Where once a confidential relation is established between two parties with regard to a matter of a private nature in which they are mutually interested, whatever takes place between them in regard to that subject is privileged (a). Thus a letter from a sonin-law to his mother-in-law volunteering advice respecting her proposed marriage and containing imputations upon the person she was about to marry, was held to be a privileged communication and not actionable in the absence of express malice (b). The case of Davies v. Snead (c) affords a good illustration as to how far the doctrine of privilege may be carried. There, the defendant mentioned to the rector of her parish a rumour that she had heard publicly uttered, impugning his conduct, and the conduct of his solicitor, the plaintiff, in the administration of a certain trust. The plaintiff having brought an action for slander against the defendant, the jury found that the words complained of were spoken bonâ fide and without malice, under the belief that it was important for the defendant's rector to know the rumour, in order that he might clear his character. The Court held that upon this finding, the communication was privileged, and that the privilege extended to the alleged slander of the plaintiff, as the communication could not be made without mentioning him. In this class of cases, "the difficulty," observes Blackburn, J., "is to determine when it becomes right for a person to speak" (d). In the following instances, there being no proof of actual malice, privilege attaches. Reports made by an official to a foreign government (e); by an association to supply to its members information about ships (f); by a surveyor as to a ship (g). The charge of a bishop delivered to his clergy (h); confidential (z) Blagg v. Sturt, 10 Q. B. 899, 16 L. J. Q. B. 39. (a) Beatson v. Skene, 5 H. & N. 838, 29 L. J. Ex. 430. (b) Todd v. Hawkins, 2 M. & Rob. 20. See also Croft v. Stevens, 31 L. J. Ex. 143; Cockayne v. Hodgkinson, 5 C. & P. 543. (c) L. R. 5 Q. B. 608. (d) Davies v. Snead, at p. 611. (e) Hart v. Gumpach, L. R. 4 P. C. 439, 42 L. J. P. C. 25. (f) Clover v. Royden, L. R. 17 Eq. 190, 43 L. J. Ch. 665. A circular addressed by one member of a friendly society to the other members, with reference to the solvency of the society, has been held not to be privileged unless the statement was true, Hill v. Hart Davis, 21 Ch. D. 798, 51 L. J. Ch. 845; see also observations of Lord Denman in Martin v. Strong, 5 Ad. & E. 538. (g) Kerr v. Shedden, 4 C. & P. 528. (h) Laughton v. Bishop of Sodor and Man, L. R. 4 P. C. 495, 42 L. J. P. C. 11. Statements in a sermon defamatory of a parishioner, though uttered in good faith, are not privileged, Magrath v. communications between clergymen respecting ecclesiastical Chap. III. matters (i); between members of a dissenting congregation respecting the appointment of a minister (k); between landlord and tenant (1); between partners (m); between persons in respect of fiduciary matters (n); and complaints to public officers of the conduct of persons in their employment (o). Charges of felony or misdemeanor made bonâ fide, and for the Criminal charges bond purpose of protecting the interest of the person to whom they are fide made made, are privileged, provided they are made on reasonable privileged. grounds for suspicion (p). When the defamatory statement is uttered in the course of, and pertinent to, an investigation set on foot by the plaintiff himself, the occasion is privileged (q). mistake. Where the defendant wrote defamatory statements of the plain- Defamation by tiff in a letter to W. under circumstances which made the publication of the letter to W. privileged, but by mistake placed it in an envelope directed to another person, who received and read the letter, it was held privileged in the absence of actual malice on the defendant's part (r). Fair and reasonable criticisms upon the public acts of a person Criticism on filling a public office are privileged (s); but such privilege does public men. not extend to their conduct in private life (t). Criticisms on matters of public interest may freely be made by Criticism on persons acting honestly and without actual malice, notwith- public affairs privileged, standing that they involve relevant comments condemnatory of individuals (u), "since" as Lord Wensleydale observes, "every Finn, 11 Ir. C. L. R. 152; see also (i) Clarke v. Molyneux, 3 Q. B. D. 237, 47 L. J. Q. B. 230. (k) Blackburn v. Blackburn, 4 Bing. 395. (1) Toogood v. Spyring, 1 C. M. & R. 181; Knight v. Gibbs, 3 N. & M. 467, 1 A. & E. 43. (m) Wilson v. Robinson, 7 Q. B. 68, 14 L. J. Q. B. 196. (n) Hopwood v. Thorn, 8 C. B. 293, 19 L. J. C. P. 94; Harris v. Thompson, 13 C. B. 333; Dunman v. Bigg, 1 Camp. 269 n. (0) Blake v. Pilfold, 1 M. & Rob. 198; Woodward v. Lander, 6 C. & P. 548. (p) Amann v. Dawson, 29 L. J. C. P. 313; Finden v. Westlake, M. & M. 461, per Tindal, C. J.; Force v. Warren, 15 (q) Cowles v. Potts, 34 L. J. Q. B. (r) Tompson v. Dashwood, 11 Q. B. D. 43; 52 L. J. Q. B. 425. The transmission by telegram of libellous matter, which would have been privileged if sent by sealed letter, avoids the privilege. Williamson v. Freer, L. R. 9 C. P. 393. (s) Earl of Lucan v. Smith, 1 H. & N. 481; 26 L. J. Ex. 94; Cooper v. Lawson, 8 A. & E. 746. (t) Parmiter v. Coupland, 6 M. & W. 108; Gathercole v. Miall, 15 M. & W. 319. (u) Henwood v. Harrison, L. R. 9 C. P. 606; Wason v. Walter, L. R. 4 Q. B. 73; Kellyv. Tinling, L. R. 1 Q. B. 699; 35 L. J. Q. B. 940. Chap. III. subject has a right to comment upon the acts of public men Reports of legal proceedings privileged. Report of meeting not always privileged. Report of liament. which concern him as a subject of the realm, if he do not make his commentary a cloak for malice or slander" (x). Where matters of fact are involved, the question of relevancy is for the jury (y). "A fair account of what takes place in a Court of Justice is privileged. The reason is that the balance of public benefit from publicity is great. It is of great consequence that the public should know what takes place in Court; and the proceedings are under the control of the judges. The inconvenience, therefore, arising from the chance of injury to private character is infinitesimally small as compared to the convenience of publicity" (z). This privilege may now be considered (though for some time the decisions of the Courts left the point in doubt) to extend to ex parte statements made in open Court (a), at all events where the matter is finally dealt with (b). When a law report has been made the vehicle for the diffusion of immoral and disgusting statements, it has been held that privilege does not attach (c). The report of a meeting not necessarily public, such as a vestry meeting (d), or meeting of poor law guardians (e), is not privileged. A faithful report in a newspaper of a debate in either House of debate in Par Parliament, though it contains matter disparaging to the character of a person, which had been spoken in the course of the debate, is privileged. Privilege attaches on the same principle that an accurate report of proceedings in a court of justice is privileged, viz., that the advantage of publicity to the community at large outweighs any private injury resulting from the publication (ƒ). The publication of a single speech made in Parliament has been held not to be privileged (g). Reviews and criticisms. "Every man," observes Lord Ellenborough, "who publishes a (x) Parmiter v. Coupland, 6 M. & W., at p. 108. (y) Beatson v. Skene, 29 L. J. Ex. 430. (z) Davison v. Duncan, per Ld. Campbell, 7 E. & B., at p. 231; 26 L. J. Q. B., at p. 106. See also Duncan v. Thwaites, 3 B. & C. 583; Hoare v. Silverlock, 9 C. B. 20. (a) Usill v. Hales, 3 C. P. D. 319; Curry v. Walter, 1 B. & P. 525; Lewis v. Levy, E. B. & E. 537; 27 L. J. Q. B. 282, book, commits himself to the judgment of the public, and anyone Chap. III. may comment upon his performance" (h). The same rule applies to criticisms on literary works as to comments on the conduct of public men (i). There is no particular privilege (in the sense in which it is used in the case of a master giving a character to a servant), attaching to an article in a newspaper, and if it transgresses the bounds of fair criticism it becomes actionable (k). Handbills or placards are subject to the same freedom of criticism, oral or writing, as books (1). So, also, are places of entertainment (m), and works of art (n). Proof of the truth of the alleged defamatory statement is an Justification of answer to an action for damages for libel or slander. The justification must show that the libel was true in every material particular (o). Thus, where a defendant published a libel, that the plaintiff, a proctor, had been suspended three times, by reason of which his neighbours were led to think that he had been guilty of dishonesty, a plea that he had been suspended once was held bad (q). So, it has been held that when the libel imputed to the plaintiff the commission of a murder under aggravating circumstances, it was held necessary to justify the aggravating circumstances as well as the substantial charge (r). libel or slander. satisfaction. Accord and satisfaction is a good defence to an action for Accord and defamation (s). Thus, where the defendant set up a plea that after the commencement of the suit, the plaintiff and the defendant agreed together to accept mutual apologies, to be published by them in their respective journals, in satisfaction of the right of action, and that these apologies were accepted, it was held good (t). By the 6 & 7 Vict. c. 96, s. 2, it is enacted "that in an action for libel contained in any public newspaper or other periodical publication, it shall be competent to the defendant to plead that (h) Carr v. Hood, cited in Tabart v. Tipper, 1 Camp. 357. (i) See ante, p. 53. Wason v. Walter, L. R. 4 Q. B. 73; 38 L. J. Q. B. 34. (k) Campbell v. Spottiswoode, 3 B. & S. 769; 32 L. J. Q. B. 185. See judgment of Cockburn, C. J., which contains an elaborate exposition of the law of libel as applied to literary criticism. (1) Paris v. Levy, 9 C. B. N. S. 342; 30 L. J. C. P. 77. (m) Dibdin v. Scott, 1 Esp. 28; Gregory v. Duke of Brunswick, 1 C. & Kir. 24. (n) Soane v. Knight, M. & M. 74; Thompson v. Shackell, Moo. & Mal. 187. (0) Weaver v. Lloyd, 4 D. & R. ; 2 B. & C. 678. (q) Clarkson v. Lawson, 6 Bing. 266. (r) Helsham v. Blackwood, 11 C. B. (s) Lane v. Applegate, 1 Stark. 97. Apology and Court under 6 & 7 Vict. payment into c. 96, s. 2. |
