CHAPTER VII. PRIVILEGED PUBLICATIONS. PART IV CHAPTER VII. INJURIOUS reflections on the character and conduct of a occasion may person may be rendered justifiable by the occasion on which justify publication. or the circumstances under which they are uttered or published; and this, it would appear, in some cases, however malicious the motive which may have prompted the utterance or publication. Occasions which justify such publications are called privileged; and the privilege may be either of an absolute or a qualified character. privilege. It is essential to the due performance of certain duties Absolute that the fear of legal liability for statements which may possibly affect injuriously the characters of individuals should not check the most outspoken criticisms and reflections on the part of those whose position calls on them to pronounce on the conduct of others; and in such cases the privilege furnished by the occasion would seem to be of an absolute character. How malicious soever the motive which may prompt the untrue and injurious reflection, the privilege afforded by the occasion appears to be an absolute bar to an action. Thus, it is necessary to the due administration of justice that judges, jurors, suitors, and witnesses should enjoy an absolute immunity for all words spoken or written in the course of any judicial proceeding, and relating thereto. Of this kind also is the privilege accorded to the utterances in Parliament of members of either House. A judge enjoys this absolute immunity, whether he be judge of a superior court, judge of a county court, or coroner. (a) An action of libel will not lie for defamatory allegations in pleadings, (b) defamatory bills or proceedings filed in Chancery or in the ecclesiastical courts, (c) or defamatory (a) Scott v. Stanfield (L. Rep. 3 Ex. 220; 18 L.T. N. S. 572); Floyd v. Barker (Co. Rep. part 12, p. 24); Rex v. Skinner (Lofft. 55); Miller v. Hope (2 Shaw, Sc. App. Cas. 125); Jekyll v. Moore (2 B & P. N. R. 341); Revis v. Smith (18 C. B. 126); Henderson v. Broomhead (4 H. & N. 569); Fray v. Blackburn (3 B. & S. 576); Thomas v. Churton (2 B. & S. 475; 31 L. J. 139, Q. B.); per Kent, C.J., in the American case of Yates v. Lansing (5 Joh. 282; 9 Joh. 395). But see per Cockburn, C.J. (2 B. & S. 479); and per Lord Denman, C.J., Kendillon v. Maltby (1 Car. & Mar. 409). (b) 1 Roll. 33; Dyer, 285; 2 Burr. 808, 817; Weston v. Dobniet (Cro. Jac. 432). (c) Ram v. Lamley (Hutt. 113); Weston v. Dobniet (Cro. Jac. 432); Astley v. Younge (2 Burr. 809, 817). PART IV. CHAPTER VII. Scotch Law. Qualified privilege. statements in an affidavit; (a) and a want of jurisdiction of the court, to which application is bona fide made, will not take away the privilege. (b) The same privilege is accorded to the judgment of a court-martial. (c) As to communications made by military men in the course of their duty, see the cases of Dawkins v. Paulett; (d) Dixon v. The Earl of Wilton; (e) and Keighley v. Bell.(ƒ) The Scotch law on this subject is in general the same as the English.(g) In case of an action of libel against a judge or witness there is a presumptio juris et de jure in favour of the defendant, the effect of which cannot be traversed by any contrary evidence. Proof of actual malice will, however, take away the privilege from a litigant party.(h) In other cases the privilege is of a qualified character: the occasion on which the untrue and injurious imputation is made excuses everything but actual malice. "In such cases," said Parke, B.,(i) "the occasion prevents the inference of malice, which the law draws from unauthorised communications, and affords a qualified defence, depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or inquiry, 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 same learned judge elsewhere(j) observes, "The proper meaning of a privileged communication is only this: that the occasion on which the communication was made rebuts the inference primâ 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 (a) Revis v. Smith (18 C. B. 126); Astley v. Younge (2 Burr. 817); Henderson v. Broomhead (4 H. & N. 569; 28 L. J. 360, Ex.); Doyle v. O'Doherty (1 C. & Mar. 418). See Maloney v. Bartley (3 Camp. 210), and M Gregor v. Thwaites (3 B. & C. 24). (b) See Lake v. King (1 Vin. Abr. 389); Hawk. Pl. Cr. 73, s. 8: Hare v. Meller (3 Lev. 169). (c) Jekyll v. Moore (2 B. & P. N. R. 341); Home v. Bentinck (2 Brod. & Bing. 130). See Oliver v. Bentinck (3 Taunt. 456). · (d) 9 B. & S. 768; L. Rep. 5 Q. B. 94; 21 L. T. N. S. 584; 39 L. J. 53, Q. B. (e) 1 F. & F. 419. (ƒ) 4 F. & F. 763. (9) See Borthwick's Law of Libel, chap. 5, sect. 1. (h) Id. p. 217. (i) Toogood v. Spyring (1 Cr. M. & R. 193). See also Somerville v. Hawkins (10 C. B. 583); Croft v. Stevens (7 H. & N. 570); Whiteley v. Adams (15 C. B. N. S. 419); Cowles v. Potts (34 L. J. 247, Q. B). (j) Wright v. Woodgate (2 Cr. M. & R. 577). PART IV. ill-will, independent of the occasion on which the communication was made." To the same effect Lord Campbell: (a) CHAPTER VII. "The rule 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: if he gives no such evidence, it is the office of the judge to say that there is no question for the jury, and to direct a nonsuit or a verdict for the defendant.' privilege This qualified privilege extends to all cases where the To what cases publication of the injurious statement is made by a person extends. fairly 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 interest is concerned. (b) Whether actual malice is present or absent is a question. of fact for the jury to determine. (c) Whether the occasion. makes the publication privileged, is a question of law for the judge or court to determine. (d) to what are privileged cominunications. It was laid down by the Court of Queen's Bench, in the General rule as case of Harrison v. Bush, (e) that a communication made bonâ 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 contain criminatory matter, which, without this privilege, would be slanderous and actionable; and this, though the duty be not a legal one, but only a moral or social duty of imperfect obligation. And the court was of opinion, though it was not necessary to decide so expressly in that case, that the same privilege would be accorded to a communication made to a person who had not in fact such a corresponding interest or duty as referred to, but who might reasonably be, and is, supposed by the party making the communication to have such interest or duty.(f) The cases in which the law of Scotland accords this Scotch Law. qualified privilege are those of counsel, litigants, masters giving characters of servants, literary criticisms, and communications to persons having an interest in the matters made known. (a) Taylor v. Hawkins (16 Q. B. 321). (b) Per Parke, B., Toogood v. Spyring (1 Cr. M. & R. 193). (c) Taylor v. Hawkins (16 Q. B. 321); Cooke v. Wildes (5 El. & Bl. 335); Dickson v. Earl of Wilton (1 F. & F. 426); Hancock v. Case (2 F. & F. 711). (d) lb. Whiteley v. Adams (15 C. B. N. S. 392; 33 L. J. 89, C. P). (e) 5 El. & Bl. 344. (f) See also Fairman v. Ives (5 B. & Ald. 642) King v. Bayley, cited by Bayley, J. (5 B. & Ald. 647); Scarll v. Dixon (4 F. & F. 250). PART IV. Examples of privileged com munications. Some examples of the general rule, which do not, howCHAPTER VII. ever, properly fall within the scope of this work, may here be given. The following have been held communications privileged by the occasion of their publication: a letter written by a person to his mother-in-law, giving her advice on the subject of her proposed marriage, and containing imputations upon the person whom she was about to marry; (a) a letter written by a tenant who had been asked by his landlord to tell him if he saw or heard anything respecting game, informing the landlord that his gamekeeper sold game; (b) information given to a party asking for it, as to the respectability of a tradesman with whom that party is about to deal; (c) a letter written confidentially to persons employing a particular solicitor, containing charges as to his professional conduct in the management of certain matters intrusted to him by the writer, and in which the writer was interested; (d) a letter written bonâ fide and confidentially to the employer of a steward, informing him of certain supposed malpractices on the part of the steward; (e) a character given by a master or mistress of a servant,(ƒ) or a retractation of a character formerly given; (g) a letter written by a subscriber to a charitable institution to the committee, reflecting on the conduct of the secretary;(h) a communication made by one director of a company to his co-directors respecting the conduct of one of its officers; ( a communication addressed by a ratepayer to a parish meeting reflecting on the parish constable; (j) a letter addressed to a bishop informing him of a report affecting the character of an incumbent in his diocese; (k) bona fide applications to the proper authorities for redress for wrongs suffered;(1) (a) Todd v. Hawkins (2 M. & Rob. 20; 8 C. & P. 88). (b) Cockayne v. Hodgkisson (5 C. & P. 543). (c) Storey v. Challands (8 C. & P. 234). (2 C. B. 628); King v. Watts (8 C. & P. 614). (d) M'Dougall v. Claridge (1 Camp. 267). See also Dunman v. Bigg (3 Camp. 260). See Bennett v. Deacon (e) Cleaver v. Senande, referred to by Lord Ellenborough 1 Camp. 267. f) Burr. 2425; Edmondson v. Stevenson (Bull. N. P. 8); Child v. Affleck (9 B. & C. 403); Pattison v. Jones (8 B. & C. 578); Fountain v. Boodle (3 Q. B. 11); Dixon v. Parsons (1 È. & F. 24). (g) Gardner v. Slade (13 Q. B. 796; 18 L. J. 334, Q B). (h) Maitland v. Bramwell (2 F. & F. 623). See Hartwell v. Vesey (3 L. T. N. S. 275). (i) Harris v. Thompson (13 C. B. 333). (1 Cr. & M. 779; 3 Tyrw, 844). (1) Spencer v. Amerton (1 M. & Rob. 470). (2 F. & F. 689). See Brooks v. Blanshard See George v. Goddard (k) James v. Boston (2 C. & Kir. 4). (1) Johnson v. Evans (3 Esp. 32); Woodward v. Lander (6 Ć. & P. PART IV. letters written by the defendant in answer to a letter from a friend of the plaintiff who had been in correspondence with CHAPTER VII. the defendant on the subject of certain charges against the plaintiff, with the sanction and concurrence of the latter; (a) a memorial from an elector and inhabitant of a borough complaining of misconduct on the part of a magistrate of the county in which the borough was situated, although addressed not to the Lord-Chancellor, but to the Home Secretary.(b) for information, &c. If a person advertises in a newspaper bona fide, in order Advertisement to find out the truth of something in which he is really for interested, the privilege furnished by the occasion would seem to afford a defence to an action for any defamatory imputation contained in the advertisement. Where an action of libel was brought for an advertisement, published in a newspaper, offering a reward to any person who could give notice to the defendant of the marriage of James Delany previous to a certain date, there being an innuendo that the defendant meant thereby to insinuate that J. D., the plaintiff, had been and was married before the time mentioned in the advertisement, and had another wife then living; and the defence relied upon was that the advertisement had been inserted by the authority of the plaintiff's wife, for the purpose of making a discovery which it was important for her to know, namely, whether the plaintiff had another wife then living, Lord Ellenborough, C.J., told the jury that, though that which is spoken or written may be injurious to the character of the party, yet if done bona fide, with a view of investigating a fact in which the party making it was interested, it was not libellous; and, . therefore, if the investigation had been set on foot and the advertisement published by the plaintiff's wife, either from anxiety to know whether she was legally the wife of the plaintiff or whether he had another wife living when he married her, it was justifiable, though done through the medium of imputing bigamy to the plaintiff. (c) The soundness of this law, however, was doubted by Lord Denman, C.J., in a subsequent case. (d) "I have great doubt," said that learned judge, "whether the interest which the wife had in the inquiry could justify the offering a reward in newspaper." a A publication which has for its bonâ fide object the vindi- Publication to (a) Hopwood v. Thorn (8 C. B. 293; 19 L. J. 94, C. P.). (d) Lay v. Lawson (4 A. & E. 795). vindicate character of writer. |