upon any public matter, whether it be the conduct of public men, or the proceedings in courts of justice or in Parliament, or the publication of a scheme, or of a literary work." These "public matters' have been classified thus: (1) affairs of state, (2) administration of justice, (3) public institutions and local authorities, (4) ecclesiastical matters, (5) books, pictures, and architecture, (6) theatres, concerts and other public entertainments, (7) other appeals to the public.61 Hard and fast limits, however, cannot be set to the extent of fair comment; the purpose of the law in permitting such a defense is a wide one, namely, to promote the public good, by enabling the people to discern right from wrong, by encouraging merit, and by exposing the charlatan and the cheat.62

63

But fair comment deals only with such things as invite public attention or call for public comment. It does not follow a public man into his private life or pry into his domestic concerns. It never attacks the individual, but only his work. Accordingly an article which commented upon the work of the plaintiff but also ridiculed his private life, was held to be beyond the protection of fair comment.64 So if a writer were to get hold of a private letter of a wellknown author and publish a damnatory article on

61 Odgers, Libel and Slander (3rd ed.), p. 46; Burdick, Law of Torts (2nd ed.), p. 332.

62 See the remarks of Martin, J., in Triggs v. Sun Printing and Publishing Association, 179 N. Y. 144, 156; 71 N. E. 739, 103 Am. St. Rep. 841, 66 L. R. A. 612, LEADING ILLUSTRATIVE CASES.

63 Same case.

64 Same case; also see Campbell v. Spottiswoode, 3 B. & S. 769 (Eng.), LEADING ILLUSTRATIVE CASES.

the author's literary style and taste, as evidenced by the letter, it is probable that there would be no immunity from the ordinary law in respect of defamatory writings.65

On the other hand, if the defendant's statement keeps within the limits of what is offered to the public, the severity of its stricture, or its facetious style, will not destroy a claim to being fair comment. A newspaper article, criticising a public performance given by the plaintiffs as public singers and dancers, contained these statements respecting the plaintiffs: "Effie is an old jade of fifty summers, Jessie a frisky filly of forty, and Addie, the flower of the family, a capering monstrosity of thirty-five. Their long, skinny arms, equipped with talons at the extremities, swung mechanically, and anon waved frantically at the suffering audience." In an action based on these and similar statements, it was held that the plaintiffs were not entitled to a verdict unless, as against the defendant's answer of fair comment, they could show actual malice.66

The comment, however, must be fair. This, as a rule, is a question for the jury. They are to say whether the article, in their opinion, "goes beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question. Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether

65 See the remarks of Collins, M. R., in Thomas v. Bradbury, Agnew & Co. (1906), 2 K. B. 627, 639 (Eng.).

66 Cherry v. Des Moines Leader, 114 Iowa 298, 86 N. W. 323, 89 Am. St. Rep. 365.

any fair man could have made such a comment on the work. It is very easy to say what would be clearly beyond that limit; if, for instance, the writer attacked the private character of the author. It is much more difficult to say what is within the limit. That must depend upon the circumstances of the particular case.'' 67

67 Lord Esher, M. R., in Merivale v. Carson, 20 Q. B. D. 275, 280 (Eng.).

CHAPTER VI.

THE RESPONSE TO A PRIMA FACIE DEFENSE.

23. Actual malice.-Besides the customary responses which a plaintiff may make to an answer in confession and avoidance, there are several replies which have a special relation to the subject of defamation. In some states, by statutory or constitutional provision, a showing of actual malice on the part of the defendant in the publication is sufficient to overcome a showing of the truth of the charge. But if there is no such express enactment, the plaintiff, as against a sufficient answer of the truth of the charge, has no recourse except through a denial, to put the defendant to his proof. Neither has he any recourse except a denial if the defendant's answer shows sufficiently a case of absolute privilege. But where the answer shows a conditional privilege or fair comment, the plaintiff may reply that the publication was with actual malice, and if he succeeds in carrying the burden of proving actual malice in the publication, he will be entitled to judgment.70

68 See subject, PLEADING IN CIVIL ACTIONS.

69

69 In Larson v. Cox, 93 N. W. 1011 (Neb.), the rule is applied to slander, while the Court recognizes the constitutional abrogation of the rule in cases of libel.

70 Somerville v. Hawkins, 10 C. B. 583, 590 (Eng.); Thomas v. Bradbury, Agnew & Co. (1906), 2 K. B. 627 (Eng.); Cherry v. Des Moines Leader, 114 Iowa 298, 86 N. W. 323.

"The proper meaning of a privileged communication," it has been said by high authority, "is only this: That the occasion on which the communication was made rebuts the inference prima 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."71 Comment which is actuated by malice cannot be deemed fair on the part of the person who makes it. Proof of malice may take a criticism that is prima facie fair outside the limits of fair comment; it is immaterial, in this case, that some one else might, without malice, have written an equally damnatory criticism.72

24. Excess of privilege.-A prima facie conditional privilege, pleaded by the defendant, may be overcome also if the plaintiff can show that the defendant used the privilege unreasonably. In this case, the defendant is liable for "excess of privilege." Thus, the defendant sent by telegram a message which might as well have been sent by letter. The message was defamatory, but the defendant claimed a privilege. Said the Court: "A communication which would be privileged if made by letter becomes unprivileged if sent through the telegraph office unreasonably, because it is necessarily communicated to all the clerks through whose hands it

71 Baron Parke, in Wright v. Woodgate, 2 C. M. & R. 577 (Eng.), as quoted by Lord Macnaghten delivering the opinion in the Judicial Committee of the Privy Council, in Jenoure v. Delmege (1891), A. C. 73, 78 (Eng.). 72 Thomas v. Bradbury, Agnew & Co. (1906), 2 K. B. 627 (Eng.).