PART IV. cation of the character of the writer against charges brought CHAPTER VII. against him is privileged. Publications not privileged. Thus, where the plaintiff, a policy-holder in an insurance company, published a pamphlet accusing the directors of fraud, Cockburn, C.J., held privileged, if the jury should be of opinion that it was published without malice,(a) a pamphlet published in reply by the directors, declaring the charges contained in the plaintiff's pamphlet to be false and calumnious, and also asserting that in a suit he had instituted he had sworn, in support of those charges, in opposition to his own handwriting. On the question of privilege his Lordship thus directed the jury: "The law is that a publication is privileged which is called for either by the duty or the fair and honest interest of the party who has made it. And I am of opinion that the answer here was privileged, and that the publication was privileged. If you are of opinion that it was bona fide for the purpose of the defence of the company, and in order to prevent these charges from operating to their prejudice, and with a view to vindicate the character of the directors, and not with a view to injure or lower the character of the plaintiff if you are of that opinion and think that the publication did not go beyond the occasion, then you ought to find for the defendants on the general issue." (b) The publication in a newspaper, by a voter at an election, of statements reflecting on the character of one of the candidates, is not privileged. (c) "However large the privilege of electors may be," said Lord Denman, Č.J., (d) "it is extravagant to suppose that it can justify the publication to all the world of facts injurious to a person who happens to stand in the situation of a candidate." Neither is a letter written to the secretary of state by an inhabitant of a borough, imputing to a person holding the offices of town-clerk and clerk to the justices of the borough, corruption in the latter office: (e) nor a letter written to Lloyd's by an officer in the navy, imputing to a captain of a transport ship misconduct and incapacity in the management of it; (f) nor a letter written by an opposing creditor to a judge of the Bankruptcy Court, previous to the hearing of an insolvent's case; (g) nor a letter written to a newspaper by members of a town council, charging (a) Kanig v. Ritchie (3 F. & F. 413). (b) Ib. See also Rex v. Veley (4 F. & F. 1117). (e) Blagg v. Sturt (10 Q. B. 899; 16 L. J. 39, Q. B.) (d) Id. 229. certain contractors for the erection of a borough gaol with misconduct in the performance of their contract; (a) nor an advertisement in a newspaper, addressed to the creditors of B. and Co., who had been declared bankrupts, and containing imputations on B. of fraudulent conduct, published by the solicitor who had acted under the commission of bankruptcy.(b) PART IV. CHAPTER VII. In cases where the occasion would render privileged a Exaggerated communication otherwise defamatory, the privilege may be language. lost by the use of language so exaggerated as to be clearly in excess of the occasion. (c) The character of the privilege accorded to fair and bond Newspaper file newspaper reports of judicial, parliamentary, and other reports. proceedings, will be treated in a subsequent chapter. (1) matters of public The nature of the protection afforded to the writers of Comments upon fair comments on matters of public interest, will be con- interest. sidered in the next chapter. CHAPTER VIII. COMMENTS ON MATTERS OF PUBLIC INTEREST. public men, and interest. THE vast benefits which accrue to the community at large Newspaper from the close and searching supervision exercised by the criticisms on newspaper press over all matters of public or general matters of public interest, and its criticisms on the conduct of men occupying prominent positions, might seem to justify, in its case, some relaxation of the strict rules which it has been found necessary to apply in other cases, for the purpose of preserving the reputation of individuals from defamatory attacks. It might be thought that the duty which the public expects from a writer for the press, of watching and making generally known the acts of all public servants, and censuring them when deserving of censure, of commenting freely on all matters which touch the public welfare, of fearlessly exposing whatever is corrupt, oppressive, or otherwise deserving of reprobation, and of acting, in general, as a (a) Simpson v. Downs (16 L. T. N. S. 391). But see Harle v. Catherall (14 L. T. N. S. 801). (b) Brown v. Croome (2 Stark. N. P. 297). (c) Wright v. Woodgate (2 Cro. M. & R. 573); Cooke v. Wildes (5 E. & B. 335); per Erle, J., Fryer v. Kinnersley (15 C. B. N. S. 422; 33 L. J. 96, C. P.); Toogood v. Spyring (1 Cro. M. & R. 194). (d) See the chapter on Newspaper Reports, post. FF PART IV. CHAPTER VIII. Limits of public criticism. kind of censor of the morals of the time, would have given him immunity in all cases where he writes honestly and bona fide in the discharge of his public duty; and that actual malice alone should render an action against him sustainable. The newspaper writer, however, stands in this respect in no different position from any other member of the community, save so far as a jury may be inclined to deal more leniently with defamatory matter contained in his publications. The law with regard to him is the same as in the case of other men; he is in no way privileged, in the strict sense of the word privileged. (a) A much greater latitude, however, is allowed to criticisms on persons occupying a public capacity than to criticisms on private individuals; and publications which would be clearly libellous if levelled against the latter may be innocent, and even commendable, when directed against the former. "That criticism," says Alderson, B., (b) "may reasonably be applied to a public man in a public capacity which might not be applied to a private individual. The same thing might be no libel on one which might be a very grievous and injurious libel on another." : Every person has a right to discuss all matters of public interest, and to comment publicly and even hostilely upon, or to ridicule the acts of, public men; but there is a limit beyond which neither the newspaper writer nor anybody else may go; and that limit appears, from the cases decided on the subject, to be this :-The writer must not make the occasion one for the gratification of personal malice and vindictiveness in commenting on public matters he must not make imputations of base, sordid, or corrupt motives, or dishonest conduct: though he is not called upon to justify to the very letter everything that he writes, his erroneous inferences must not be reckless: he must not, in short, go beyond what a jury shall consider the limits of fair and honest, though it may be hostile or severe, or even, in some respects, inaccurate criticism. If he does, even though he may bona fide believe in the truth of his imputations, the publication is a libel. "There is a difference," says Parke, B., (c) "between publications relating to public and private individuals. Every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if (a) The word "privileged " is, however, in a looser sense, frequently applied to such publications, especially in the reports of cases decided at Nisi Prius. (b) 6 M. & W. 108. (c) Parmiter v. Coupland (6 M. & W. 108). he do not make his commentary a cloak for malice and PART IV. slander; but any imputation of wicked or corrupt motives CHAPTER VIII. is unquestionably libellous." "The right," says Cockburn, C.J., (a) "of public discussion on matters of public interest is important, and it requires for its beneficial exercise that it should be exercised fully and freely, without being subject to too harsh or strict a limitation. And, so long as it is exercised fairly and honestly, it is protected or excused, even although it may incidentally involve the publication of defamatory matter. But at the same time the comments must be fair, that is,· conceived in a fair spirit-in the spirit of fair discussionand not in a spirit of reckless or inconsiderate imputation. That which is recklessly defamatory can hardly be deemed fair." belief justifles An honest belief in the justice of the comments made is whether honest not sufficient of itself to justify a defamatory publication; defamatory for such belief might originate in the blindness of party publication. zeal, or in personal or political aversion. A person taking upon himself publicly to criticise and to condemn the conduct or motives of another, must bring to the task, not only an honest sense of justice, but also a reasonable degree of judgment and moderation, so that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism on the conduct and motives of the party who is the object of censure.(b) In a case where a newspaper article imputed to the editor and part proprietor of another newspaper that in putting forth to the public the sacred cause of the dissemination of religious truth among the heathen he was acting as an impostor, and that his purpose was to put money into his own pocket by obtaining contributions to his newspaper; and also that he had not only published in his newspaper the name of a fictitious person as the authority for his statements, but also, with a view to induce people to contribute, published a fictitious subscription list, the article was held to be libellous, although the jury found that the writer believed the imputations contained in it to be well founded. (c) "It is said, on behalf of the defendant," said Cockburn, C.J., "that as the plaintiff addressed himself to the public in a matter, not only of public, but of universal interest, his (a) Hedley v. Barlow (4 F. & F. 230). (b) Per Cockburn, C.J., Wason v. Walter (L. Rep. 4 Q. B. 96; 19 L. T. N. S. 409; 38 L. J. 34, Q. B.). (c) Campbell v. Spottiswoode (3 B. & S. 769; 8 L. T. N. S. 201; 32 L. J. 185, Q. B.). PART IV. conduct in that matter was open to public criticism; and I CHAPTER VIIL entirely concur in that proposition. If the proposed scheme were defective, or utterly disproportionate to the result arrived at, it might be assailed with hostile criticism. But then a line must be drawn between criticism upon public conduct and the imputation of motives by which that conduct may be supposed to be actuated; one man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid, and wicked motives, unless there is so much ground for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements, but that his belief was not without foundation. . . . . It is said that it is for the interests of society that the public conduct of men should be criticised without any other limit than that the writer should have an honest belief that what he writes is true. But it seems to me that the public have an equal interest in the maintenance of the public character of public men; and public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation. I think the fair position in which the law may be settled is this: That where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his motives, which arise fairly and legitimately out of his conduct, so that a jury shall say that the criticism was not only honest but also well founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, he is therefore justified in assailing his character as dishonest." "I should be unwilling," said Mellor, J., "to limit the right of a writer in a newspaper, or any other individual, to canvass any scheme, even though it be a scheme of public benevolence. But, giving full latitude to fair comment, so soon as a writer imputes that the person proposing the scheme is doing it from a base and sordid motive, and is putting forth a list of fictitious subscribers, in order to delude others to subscribe, it cannot be said to be within the limits of fair criticism." The rule is much more loosely laid down in the directions given to juries at Nisi Prius by more than one judge, who have made the test of legal liability the honesty and bona fides of the writer, even in cases where his criticisms and inferences are erroneous. Thus Erle, C.J.: “The rule in these cases is that the comments are justified, provided the |