PART IV.

defendant honestly believes that they were fair and just; with that limitation the law allows the publication." (a) In CHAPTER VIIL another case(b) Martin, B., told the jury that there was no limit except malice to comments upon a man who claimed a public office. And in a case (c) where the alleged libel consisted of a newspaper article commenting in the severest manner upon certain advertisements of a medical practitioner, and representing him as an impostor and scoundrel, Cockburn, C.J., thus directed the jury on the second ground of defence relied on by the defendant, viz., that the publication was justifiable as a fair comment on a matter of public interest. "Under that head of defence he (the defendant) says that it was a matter of public interest and public concern; that the plaintiff by his advertisements invited people to submit to his system of treatment; and that if he (the defendant) really believed it to be a delusion, then he had a right to maintain that it was so; and that even if, in drawing inferences of imposture and bad intention, he fell into error, yet, if he wrote honestly and with the intention of exercising his vocation as a public writer fairly and with reasonable moderation and judgment, he is entitled to the verdict. And I entirely agree in that view. Here is a man challenging public criticism by bringing forward what professes to be a new system of treatment, and inviting the public to adopt it as the only means of curing the most destructive disease known among us. doing this he challenges public criticism; and if a public writer, using a reasonable degree of temper and moderation, as behoves any one who makes imputations upon others-if a public writer, thus discussing the subject in the exercise of his vocation, falls into error as to the facts or the inferences, and goes beyond the limits of strict truth, he is, nevertheless, privileged. The occasion is a privileged (d) one, and if the privilege is exercised honestly, faithfully, and with reasonable regard to what truth and justice require, then, though he may exceed the limits of what he can legally prove to be the truth, he is protected from liability. It is not, therefore, necessary that the justification should appear to you to be made out, if you think that the defendant or the writer was in the reasonable and honest exercise of his (a) Turnbull v. Bird (2 F. & F. 524). See the language of the same learned judge in Paris v. Levy (2 F. & F. 74, 75).

(b) Harle v. Catherall (14 L. T. N. S. 801).

(c) Hunter v. Sharp (4 F. & F. 1005).

In

See on this use of the word privileged the observations of Crompton and Blackburn, JJ., in Campbell v. Spottiswoode, post, pp. 438, 439.

PART IV.

vocation as a public writer, even although he was not fully CHAPTER VIIL Warranted in drawing the inferences he did as to the conduct of the plaintiff, and although it may be that he was not entirely justified by the absolute truth." The authority of these dicta, so far as they place the test of freedom from liability in the mere bona fides and honest belief of the writer, must, however, be considered as outweighed by the deliberate decision of the Court of Queen's Bench, in Campbell v. Spottiswoode, (a) that the belief, however honest, of the writer, will not justify defamatory imputations which are erroneous in point of fact.

Privilege.

"The word 'privilege,'" said Blackburn, J., in the case last referred to,(b) "is often used loosely and in a popular sense when applied to matters which are not, properly speaking, privileged. But, for the present purpose, the meaning of the word is that a person stands in such a relation to the facts of the case that he is justified in saying or writing what would be slanderous or libellous in any one else. For instance, a master giving a character of a servant stands in a privileged relation; and the cases of a memorial to the Lord Chancellor or the Home Secretary on the conduct of a justice of the peace,(c) and of a statement to a public functionary reflecting upon some public officer, (d) rank themselves under that class. In Maitland v. Bramwell (e) the bona fides of the defendant was left to the jury, because she was privileged by her position to say what she believed to be true. So in Eastwood v. Holmes (f) when properly understood, Willes, J., must have considered that there was a privilege of this kind when he nonsuited the plaintiff in an action against the publisher of a report of the proceedings of The British Archaeological Association, in which it was stated that some supposed antiquities offered for sale by the plaintiff were of recent fabrication. In these cases no action lies unless there is proof of express malice. If it could be shown that the editor or publisher of a newspaper stands in a privileged position, it would be necessary to prove actual malice. But no authority has been cited for that proposition; and I take it to be certain that he has only the general right which belongs to the public to comment upon public matters: for example, the acts of a minister of state; or, according to modern authorities somewhat extending the doctrine, where (a) 3 B. & S. 769; 8 L. T. N. S. 201; 32 L. J. 185, Q. B.

(b) 3 B. & S. 780.

(c) Harrison v. Bush (5 E. & B. 344).

(d) Beatson v. Skene (5 H. & N. 838).
(f) 1 F. & F. 347

(e) 2 F. & F. 623.

PART IV.

a person has done or published anything which may fairly be said to invite comment, as in the case of a handbill or CHAPTER VIII. advertisement. (a) In such cases every one has a right to make fair and proper comment; and so long as it is within that limit it is no libel." "It is necessary," said Crompton, J., in the same case, "to confine privilege, as the law has always confined it, to cases of real necessity or duty, as that of a master giving a servant a character, or of a person who has been robbed charging another with robbing him.”

The case of Campbell v. Spottiswoode must be regarded as an express and distinct authority for the proposition that there is no privilege, in the strict sense of that term, in the case of comments by public writers on matters of public interest, and on persons occupying public positions, though the expression "privileged publication" has been frequently applied by eminent judges to such writings. For privilege, where it exists, excuses, in the absence of actual malice, every statement, however false in itself, or injurious to the person respecting whom it is made. Thus, a letter written by a master giving the character of a servant, is privileged, though it may contain a specific charge of fraud against the servant which is utterly false. To enable the servant to maintain an action of libel in respect of it, he must prove the existence of actual malice on the part of the master; (b) whereas the case of Campbell v. Spottiswoode has distinctly decided that neither the absence of actual malice nor the bona fide belief of the public writer in the truth of the imputations which he makes, will justify him in making such imputations as there complained of, if they are not true in point of fact. In this strict sense, then, of the term privileged, the public writer, when dealing with matters. and characters of public interest, is not privileged. He is, however, treated with more indulgence than a private individual who publishes defamatory matter of another, in that slight errors will in his case be excused, where he writes honestly in the interest of the public and not with a malicious design of doing a personal injury.

cases.

Perhaps the result of the various dicta on this subject, Result of the taken along with the decision of the Court of Queen's Bench in Campbell v. Spottiswoode, might be expressed in the language of Pollock, C.B., in Gathercole v. Miall, (c)—that all bona fide and honest remarks upon persons occupying (a) Paris v. Levy (9 C. B. N. S. 342; 30 L. J. 11, C. P.).

(b) Weatherston v. Hawkins (1 T. R. 110); Edmondson v. Stephenson (Bull. N. P. 8; and see Rex v. Cator (4 Esp. 117); Dunman v. Bigg (1 Camp. 269).

(c) 15 M. & W. 332.

PART IV. CHAPTER VIIL

Matters of public interest.

College or hospital.

public positions may be freely made "without being questioned too nicely for either truth or justice." (a)

Or perhaps the rule might be laid down thus: that boná file comments not in every respect justifiable, and honest inferences not altogether correct as to conductor motives, may be excused, provided the matter be one of public interest, that the circumstances of the case render comments and inferences of such a character not unnatural, and that there is no considerable margin of unsubstantiated defamatory imputation; (b) whilst, on the other hand, as expressly decided in Campbell v. Spottiswoode, (c) unfounded imputations of base and sordid motives are unjustifiable, however honestly their truth may be believed in by the writer who publishes them.

Where a petition was presented to the House of Lords charging a high judicial officer with having been guilty of dishonourable conduct many years before, and praying for an inquiry, and that he should be removed from his high office if the charge were proved true, and a debate took place on the subject, when the charge was utterly refuted, it was held by the Court of Queen's Bench that this was a matter of great public concern, on which a newspaper writer had a full right to comment, and that his comments, though reflecting strongly on the person who presented the petition, were not actionable in absence of proof of malice. (d)

The working of any public institution, such as a college or a hospital, is a matter of public interest, which may freely be discussed by and through the medium of the press. (e)

An inspector having been sent by the Charity Commissioners to institute an inquiry into the working of a medical college at Birmingham, made a report to the commissioners, of the results of his inquiry, which was an open and public one, in which was set forth a letter addressed to the bishop of the diocese, and complaining of "the arbitrary, tyrannical, and overbearing conduct" of the plaintiff, a professor in the college, as well as of "his complete ineffi

(a) His lordship calls comment upon matters of a public nature "licentious comment, as opposed to a comment that must be based in truth."

(b) In Morrison v. Belcher (3 F. & F. 619), Cockburn, C.J., told the jury that "it was not because a public writer might not be able to prove to the letter all he had stated that therefore he was liable; but the jury must be of opinion that his observations and inferences were fair and legitimate under the circumstances, or that they were not so unfair as to be reckless, and thus in law, malicious.”

(c) Compare the language of Cockburn, C.J., at the end of the judgment in Wason v. Walter (L. Rep. 4 Q. B. 73; 19 L. T. N. S. 409). (d) Wason v. Walter (L. Rep. 4 Q. B. 73; 19 L. T. N. S. 409). (e) Cox v. Feeney (4 F. & F. 13).

ciency in every office" which he held in the college. The college still continuing in an unsatisfactory state, the defendant, about three years after the report was made published the whole of it in a newspaper, of which he was the proprietor, and the plaintiff brought an action for the libel contained in the letter. The publication of the report was introduced by an article in the newspaper, stating that appeals on behalf of the college had been frequently made in its columns, and that the institution was known to be in an unsatisfactory state. "We therefore," it proceeded, "feel it our duty to assist the council in the arduous labours they have undertaken, by laying before the public the materials necessary to the foundation of a sound judgment on the condition and prospects of the college. As we cannot do this well more completely or impartially than by publishing the report, we have obtained an official copy of it, and publish it in portions," &c. It was contended, on behalf of the plaintiff, that the publication of the report nearly three years after it was made could not be for public information; that the matter had become stale, and that the publication of the report revived it wantonly; but Cockburn, C.J., left it to the jury to say whether (1) the matter was one which it interested the public to know, and (2) whether the defendant published it with the honest desire to afford the public information, and not with a sinister motive to injure the plaintiff; and directed them, if they answered both these questions in the affirmative, to find a verdict for the defendant.

As to the former question, his Lordship said, "There can be no doubt whatever that this institution, with reference to which these questions have arisen, is one of public concern. Although it may have been founded, in the first place, by private contributions, it has also been founded for public purposes; so far as the hospital is concerned, with a view to the assistance of the poor inhabitants of Birmingham who may stand in need of medical or surgical aid; so far as the college is concerned, for the instruction of the students in the important branches of knowledge there taught. It appeals to the public, and holds out expectations with reference to the students whom their parents or guardians send there. It is, therefore, a public concern to the inhabitants of Birmingham and its district. That being so, the public have an interest in its government, its management, its discipline, and, what is essential, the management of its financial concerns. What is said with reference to its discipline, to its means of imparting instruction, to its means of fulfilling the objects for which it exists,

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CHAPTER VIII.