ranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society." 40

Thus, an accusation of crime is conditionally privileged if made in answer to a question by an officer of the law with a view to detecting the offender.11 A statement by D, a business man, that P is insolvent is conditionally privileged if made in answer to an inquiry by one who proposes to do business with P.42 So an employer's answer to a question respecting the character of a former servant made by any person who proposes to engage him, is conditionally privileged.43

But if the communication is "officious," that is, volunteered by the defendant without inquiry from one possessing a lawful interest, it is unprivileged unless there is some special confidential relation between the parties creating a duty to speak without inquiry. For instance, D, the mayor of the town, had as his guest one M, with whom was his servant, P. The police reported to D that a theft had been committed in a certain hotel, and that P was suspected. D without inquiry told M of the report and

40 Per Brett, J., in Toogood v. Spyring, 1 C. M. & R. 181 (Eng.).

41 Kine v. Sewell, 3 M. & W. 297 (Eng.); Dale v. Harris, 109 Mass. 193. 42 Jackson v. Hopperton, 16 C. B. (N. S.) 829 (Eng.). An important qualification of this has recently been made by the Judicial Committee of the Privy Council, the highest court of the British Empire, in MacIntosh v. Dun (1908), A. C. 390 (Eng.). It was held here that the privilege did not extend to communications furnished on special request, if the request was itself solicited as a matter of business by the defendant. In this case the defendant was a commercial agency; the communication was to a subscriber on special request.

43 Jackson v. Hopperton, cited in Note 42.

the suspicion. P was innocent; but it was held that D's statement to M was made in the discharge of a moral or social duty, and as such was conditionally privileged. There being no evidence of actual malice, judgment was given for the defendant.44

(b) Statements in the protection of an interest. There may be a conditional privilege of defamation even in the absence of a legal, social, or moral duty. "Every statement made with the object of protecting some interest of the writer or speaker, and reasonably necessary for such purpose, is conditionally privileged."

9945

The interest may relate to the defendant's property or to his reputation, or to the good name of his business. An employer has a sufficient interest in the honesty of his men to warn them against a former associate who was suspected of theft.46 The interest may belong to the defendant exclusively or in common with others. A charge by any member of the public against a public official will be conditionally protected, although defamatory, if it is made to one who has authority over the official.47

But it must be an interest which the law can recognize; a mere friendly interest does not suffice.48 And

44 Stuart v. Bell, 2 Q. B. 341 (Eng.).

45 Fraser, Law of Libel and Slander (3rd ed.), p. 135, adopted in Burdick, Law of Torts (2nd ed.), p. 330.

46 Somerville v. Hawkins, 10 C. B. 583 (Eng.); Squires v. Wason Mfg. Co., 182 Mass. 137, 65 N. E. 32; Smith v. Smith, 73 Mich. 445, 41 N. W. 499, 3 L. R. A. 52, 16 Am. St. Rep. 594; Caldwell v. Story, 107 Ky. 10, 52 S. W. 850.

47 Harrison v. Bush, 5 E. & B. 344 (Eng.); Purcell v. Sowler, 2 C. P. D. 215 (Eng.).

48 The Count Joannes v. Bennett, 5 Allen 169 (Mass.), LEADING ILLUSTRATIVE CASES. But see Burdick, Torts (2nd ed.), p. 324.

it is necessary, in these cases, as in cases of privilege founded on duty, that the communication be made to one who has a corresponding interest or duty. The doctrine on the subject, said Bigelow, C. J., in 1862, "has been stated in the form of a legal rule or canon, which has been sanctioned by high judicial authority. The statement is this: A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty to perform, is privileged, if made to a person having a corresponding interest or duty, although it contains defamatory matter, which without such privilege would be libellous and actionable. It would be difficult to state the result of judicial decisions on this subject, and of the principles on which they rest, in a more concise, accurate and intelligible form." 49

In some cases the interest of the party making the defamatory statement is so slight that it reaches the vanishing point; and there is authority for extending the privilege to communication in the interest of the recipient alone.50 A further extension of the privilege is found in the English doctrine that a defamatory statement by an employer is conditionally privileged, when made to one about to employ the servant, even when the statement was volunteered.51

(c) Reports of public proceedings. A newspaper

49 The Count Joannes v. Bennett, 5 Allen 169 (Mass.), LEADING ILLUSTRATIVE CASES.

50 Child v. Affleck, 9 B. & C. 403 (Eng.), LEADING ILLUSTRATIVE CASES. 51 Coxhead v. Richards, 2 C. B. 569 (Eng.). Tindal's opinion has been accepted as stating the correct rule. See Stuart v. Bell, 2 Q. B. 341 (Eng.).

published a full, true, and accurate report of the proceedings of a public meeting in which the whole community had an interest. In these proceedings, and as a principal part of them, a statement which defamed P was publicly made. This defamatory statement was given in the newspaper's report, precisely as it was made, and without comment. Is the publication protected by a privilege, either absolute or conditional? Absolutely privileged it is not, at common law.52 Neither is it conditionally privileged at common law on the mere ground that it is a full and accurate newspaper report of a public meeting in which all the community were interested.53 "Liberty of the press," says Judge Cooley, "is not license, and newspapers have no privilege to publish falsehoods, or to defame under the guise of giving the

But a full and accurate report of actual public legislative proceedings, or of the actual public proceedings of any court of justice, whether preliminary or final, are conditionally privileged; and the

52 By statute in England, passed in 1888 (The "Law of Libel Amendment Act, §3), a fair and accurate report in any newspaper of proceedings publicly heard before any Court exercising judicial authority shall, if published contemporaneously with such proceedings, be privileged, provided that nothing in this section shall authorize the publication of any blasphemous or indecent matter." It has been doubted whether this statute confers an absolute or only a conditional privilege.

53 Trebby v. Transcript Publishing Co., 74 Minn. 84, 76 N. W. 961, 73 Am. St. Rep. 330. This rule has been modified by statute to some extent. See Garby v. Bennett, 166 N. Y. 392, 59 N. E. 1117. See note 52, and Law of Libel Amendment Act, § 4.

54 Cooley, Torts (student's ed.), p. 244, referring to Fitzpatrick v. Daily States Pub. Co., 48 La. Ann. 1116, 20 So. 173; Haynes v. Clinton Printing Co., 169 Mass. 512, 48 N. E. 275; Belknap v. Ball, 83 Mich. 583, 47 N. W. 674, 21 Am. St. Rep. 622, 11 L. R. A. 72; Democrat Pub. Co. v. Jones, 83 Texas 302, 18 S. W. 652. And see Barnes v. Campbell, 59 N. H. 128.

same privilege has been extended to the quasijudicial proceedings of semi-public organizations, such as a State Medical Society.

22. Fair comment as a defense.-An action for defamation will fail if the defendant can show that the statement complained of, although apparently defamatory of the plaintiff, was by way of fair comment on a matter of public interest.55 Between this defense and that of conditional privilege" there is a material difference. To establish a privilege to defame, the defendant must show that he stands within a certain favored class; but the defense of fair comment is open to all.57

The privilege extends, not to statements of fact, which if privileged stand upon another ground,58 but to comment upon facts. "Any matter which does not indicate with reasonable clearness that it purports to be comment and not statement of fact is not within the scope of the privilege.59

Within the range of comment, properly so called, the privilege is limited to matters of public interest. "Nothing is more important," said Crompton, J., in Campbell v. Spottiswoode,60 "than that fair and full latitude of discussion shall be allowed to writers

55 Carr v. Hood, 1 Camp. 355 (Eng.), note, LEADING ILLUstrative CaseS; McQuire v. Western Morning News Co. (1903), 2 K. B. 318 (Eng.); Hunt v. Star Newspaper Co. (1908), 2 K. B. 309 (Eng.); Bearce v. Bass, 88 Me. 521, 34 Atl. 411, 51 Am. St. Rep. 446.

56 § 21.

57 Campbell v. Spottiswoode, 3 B. & S. 769 (Eng.), LEADING ILLUSTRATIVE CASES.

58 § 21.

59 Fletcher Moulton, L. J., in Hunt v. Star Newspaper Co. (1908), 2 K. B. 318 (Eng.).

60 3 B. & S. 769, 778 (Eng.), LEADING ILLUSTRATIVE CASES.