more," said Best, C.J., to the jury, "the defendant is entitled PART IV. to your verdict. If he has exceeded the limits of fair and CHAPTER VIIL honest criticism, then you will find for the plaintiff.” And where an architect and professor of architecture in Architecture. the Royal Academy brought an action for an alleged libel upon him, in the way of his profession, contained in a publication which professed to give an account of the principles of a new order of architecture, called the Boeotian order of architecture, stating it to have been invented by the plaintiff, whom it termed the Baotian professor, and setting forth several absurd principles as the rules of the new order, which it illustrated by examples of buildings, all of which were the works of the plaintiff, Lord Tenterden, C.J., thus directed the jury: "This publication professes in substance to be a criticism on the architectural works of the plaintiff. On such works, as well as on literary productions, any man has a right to express his opinion; and, however mistaken in point of taste that opinion may be, or however unfavourable to the merits of the author or artist, the person entertaining it is not precluded by law from its fair, reasonable, and temperate expression. It may be fairly and reasonably expressed, although through the medium of ridicule. In the present case the censure is certainly strong; nevertheless, if you think the criticism fair, reasonable, and temperate, although it may not be correct, the defendant will be entitled to your verdict; if you think it unfair and intemperate, and written with the intention and for the purpose of injuring the plaintiff in his profession, by imputing to him that he acts on absurd principles of art, you will find for the plaintiff." (a) IT CHAPTER IX. NEWSPAPER REPORTS. I. REPORTS OF JUDICIAL PROCEEDINGS. trials and may now be considered as established beyond possibility Reports of of doubt that an impartial, correct, and bona fide, even judicial though not a verbatim, report, and though published from investigations day to day, of any proceedings of a court of justice, which are not merely ex parte, is privileged, unless the publication be prohibited by the court itself, or the nature of the trial unfits it for publication; and the privilege is not confined to reports of the proceedings of the superior courts. (a) Soane v. Knight (1 M. & Mal. 75). PART IV. CHAPTER IX. Grounds for immunity. 66 "It has been adjudged," says Lord Campbell, C.J.,(a) 'that, if the due administration of justice is supposed so to require, the court has authority to make an order against publishing any part of the trial till the whole is concluded. Nevertheless, where no such order has been made, the practice has long existed of daily publishing, without any disapprobation from the court, each day's proceedings till the trial is concluded. And in several instances this practice-which, in reality, only extends the area of the court-has been found highly beneficial in the discovery of material evidence. . . . The law upon such a subject must bend to the approved usages of society, though still resting upon the same principle, that what is hurtful and indicates malice should be punished, and that what is beneficial and bona fide should be protected." The reason for allowing this liberty of publication is stated by the same learned judge in another case, (b) to be— that the balance of public benefit from the publicity is great: it is of great consequence that the public should know what takes place in court, and the proceedings are under the control of the judges; the inconvenience, therefore, arising from the chance of the injury to private character, is infinitesimally small as compared to the convenience of publicity. To the same effect Lawrence, J., in Rex v. Wright:(c) “The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to private persons whose conduct may be the subject of such proceedings." Reports of judicial proceedings do, in fact, only extend that publicity which is so important a feature of the administration of the law in England, and thus enables to be witnesses of it, not merely the few whom the court can hold, but the thousands who can read the reports. (d) "The courts," says Lord Campbell, (e) "are open to all; but they are of limited extent, and only a small number of persons can be present in them; but, by means of the press, the whole nation is informed of what takes place, and is put in a position to form an opinion upon the conduct of the jury, the judge, and the witnesses." According to Cockburn, C.J., the immunity enjoyed by publications of the proceedings of courts of justice rests upon a two-fold ground. "In the English law of libel," (a) Lewis v. Levy (El. Bl. & El. 560; 27 L. J. 282, Q. B.). (b) Davison v. Duncan (7 El. & Bl. 231). (c) 8 T. R. 298. (d) Per Wilde, B., delivering the judgment of the Court of Exchequer in Popham v. Pickburn (7 H. & N. 891; 5 L. T. N. S. 846; 31 L. J. 133, Ex.). (e) Andrews v. Chapman (3 Car, & Kir. 289). 6 PART IV. says his Lordship, (a) "malice is said to be the gist of an action for defamation. And though it is true that by CHAPTER IX. malice, as necessary to give a cause of action in respect of a defamatory statement, legal, and not actual, malice is meant while by legal malice, as explained by Bayley, J., in Bromage v. Prosser, (b) is meant no more than the wrongful intention which the law always presumes as accompanying a wrongful act, without any proof of malice in fact-yet the presumption of law may be rebutted by the circumstances under which the defamatory matter has been uttered or published; and if this should be the case, though the character of the party concerned may have suffered, no right of action will arise. The rule,' says Lord Campbell, in the case of Taylor v. Hawkins, (c) ́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.' It is thus that, in the case of reports of proceedings of courts of justice, though individuals may occasionally suffer from them, yet, as they are published without any reference to the individuals concerned, but solely to afford information to the public, and for the benefit of society, the presumption of malice is rebutted, and such publications are held to be privileged. The other, and the broader, principle on which this exception to the general law of libel is founded is, that the advantage to the community, from publicity being given to the proceedings of courts of justice, is so great, that the occasional inconvenience to individuals arising from it must yield to the general good." prohibited or With reference to the last of the qualifications stated Publication at the beginning of this chapter, of the general right to improper. publish the proceedings of courts of justice, Bayley, J., says, in Rex v. Creevey: (d) "It has been argued that the proceedings of courts of justice are open to publication. Against that, as an unqualified proposition, I enter my protest. Suppose an indictment for blasphemy, or a trial where indecent evidence was necessarily introduced, would everyone be at liberty to poison the minds of the public by circulating that which, for the purposes of justice, the court is bound to hear? I should think not; and it is not true, therefore, that in all instances the proceedings of a court of justice may be published." And it was expressly decided in Rex v. Carlile (e) that it is (a) Wason v. Walter (L. Rep. 4 Q. B. 87). (b) 4 B. & C. 255. PART IV. not lawful to publish even a correct report of the proceedCHAPTER IX. ings in a court of justice, if it contain matter of a scandalous, blasphemous, or indecent nature. "We are bound," said Bayley, J.,(a) "for the purpose of justice, to hear evidence in the course of judicial proceedings, the publication of which, at any distant period of time, or at any time afterwards, may have the effect of an utter subversion of the morals and religion of the people. It very often happens that, for the purposes of justice, our ears may be shocked with extremely offensive and indelicate evidence. But though we are bound, in a court of justice, to hear it, other persons are not at liberty afterwards to circulate it at the risk of those effects, which, in the minds of the young and unwary, such evidence may be calculated to produce. To the same effect Maule, J., in a later case:(b) "Matters may appear in a court of justice that may have so immoral a tendency, or be so injurious to the character of an individual, that their publication could not be tolerated." Publication of ex parte In Rex v. Carlile (c) the defendant had published, with the heading "The Mock Trial of Mr. Carlile,” a full and correct report of the trial of an indictment for publishing "Paine's Age of Reason," in the course of which Mr. Carlile had read over to the jury the whole of that book. The court were unanimous in holding that the republication of the book could not be justified on the ground that it was part of a true report of what took place at the trial. Subject to the qualifications that the publication be not of matters blasphemous, seditious, or indecent, and that it be not forbidden by the court, it is justifiable to publish a fair and accurate report of the trial or other proceeding, not being merely ex parte, in any court of justice; and no action of libel can be maintained for a statement, occurring in such report, of the charges made against any of the parties. In the first reported case on this subject, (d) which was an proceedings not action against the publisher of the Times for an alleged libel contained in a report of an application made to the King's Bench for an information against two justices for conspiracy, the defendant pleaded only the general issue, and at the trial proved that the report was a true and faithful account of what had passed in the King's Bench upon the motion. The court were of opinion that the action could not be maintained; but, some doubts being entertained whether the matter of justification should not have been specially pleaded, the case stood over, and no judgment was ever given. (a) 3 B. & Ald. 169. (b) Hoare v. Silverlock (9 C. B. 23). The dicta of many learned judges in subsequent cases are clear on the subject. "As a general rule," says Maule, J., (a) "it may be assumed that the publication of a fair account of what passes in a court of justice, not ex parte, is justifiable, unless there be something to take it out of that rule." "It is a good defence to an action of libel," says Lord Campbell, C.J., (b) "that it consists of a fair and impartial (though not verbatim) report of a trial in a court of justice." The same protection has been extended to a fair report, published in a newspaper, of the proceedings held in gaol before a registrar in bankruptcy, under sects. 101 and 102 of the Bankruptcy Act, 1861, upon the examination of a debtor in custody. (c) "The only question," said Pollock, C.J., "is whether the registrar's court was, under the circumstances, a public court. I think that it was. We ought, in my opinion, to make as wide as possible the right of the public to know what takes place in any court of justice, and to protect a fair, bonâ fide statement of proceedings there." The proceedings before examiners appointed under 9 Geo. 4, c. 22, s. 7, to examine into the sufficiency of the sureties on the trial of an election petition, were also held to be proceedings before a legal court, of which a fair and accurate report might be published. (d) It was held by the House of Lords, (e) on appeal from the Scotch Court of Session, that the publication, in a book called "The Scottish Mercantile Society's Record" (known amongst the trading community as the "Black List"), of a copy of the register of protests for non-acceptance and nonpayment of bills of exchange and promissory notes, established by the Scotch Acts of 1681 and 1696, and the 12 Geo. 3, c. 72, and 23 Geo. 3, c. 18, was not libellous, the contents of the register being public property, and the publication of them authorised; and the result of the various Acts of Parliament being to give the registration the effect of a decree or judgment of the Court of Session. "It is equivalent," said the Lord Chancellor, "to what in this country we call a judgment upon a warrant of attorney. In neither case does the court interfere, but in both, as in cases of judgment by default and decreet in absence, the party having a right to the authority of the court to confirm his claim, obtains the judgment as of course. Whether that (a) Hoare v. Silverlock (9 C. B. 23). (b) Lewis v. Levy (El. Bl. & El. 553). (c) Ryalls v. Leader (L. Rep. 1 Ex. 296; 14 L. T. N. S. 563; 35 L. J. 185, Ex.). (d) Cooper v. Lawson (8 A. & El. 746). (e) Fleming v. Newton (1 H. L. Cas. 363). PART IV. CHAPTER IX. |