CHAPTER IX.

DEFAMATION.

WE pass now to consider acts which are injurious to the reputation of an individual. And first among these we must place the publication of defamatory words. Such publication will give rise to an action either of libel or of slander according to the circumstances. If the words be written or printed or recorded in any other permanent form, the plaintiff's proper remedy will be an action of libel; if on the other hand the words be merely spoken, his action, if any, will be an action of slander. In either case the words must be defamatory, i.e., such as the law deems injurious to the reputation of the plaintiff. But it is not by words alone that a man's reputation can be injured. Thus a statue, a picture or a caricature may be a libel; so may a chalk mark on a wall, a waxwork figure, an effigy or any other contumelious sign of a more or less permanent character.

In order to decide in any given case whether the words are defamatory we must first discover what meaning they conveyed to those who read or heard them. This must depend mainly on the words themselves, but also to some extent on the plaintiff's office, profession or trade, and on all the surrounding circumstances. No general rule can be laid down defining absolutely and once for all what words are defamatory and what are not. Words which would seriously injure A.'s reputation might do B.'s no harm. Each case must be decided on its own facts, and in each case the test is this: Have the defendant's words appreciably injured the reputation of the plaintiff?

But the plaintiff's reputation cannot be injured unless the defendant's words be communicated to some third person. If they are written or printed, some one must read them; if

they are spoken, some one must hear them. Thoughts by themselves are not actionable: merely composing or even writing down defamatory words is not a tort, unless they be subsequently published. No action will lie if the words be communicated only to the person defamed; for that does not injure his reputation, though it may wound his selfesteem. A man's reputation is the estimate in which others hold him, not the good opinion which he has of himself. It may be that the defendant desired and intended, and did all in his power, to publish words defamatory of the plaintiff, yet if they never reach the ear or eye of any one except the plaintiff, no tort has been committed. To be actionable, the words must be published by the defendant to some person other than the plaintiff, and must make that other person think worse of the plaintiff.

The intention or motive with which the words were published is, as a rule, immaterial. If the defendant has in fact injured the plaintiff's reputation, he is liable, although he had no such purpose in his mind when he spoke or wrote the words. Every one must be presumed to know and to intend the natural and ordinary consequences of his acts. Even if the defendant at the time he published the words did not attend to or think of their natural or probable consequences, or hoped or expected that these consequences would not follow, this can only go to mitigate the damages; it is no answer to the action.

Sometimes, however, it is a man's duty to speak fully and freely and without thought or fear of the consequences, and then the above rule does not apply. The words are privileged by reason of the occasion on which they were employed; and no action lies unless the plaintiff can prove that the defendant was actuated by some wicked or indirect motive. But in all other cases (although the pleader invariably alleges that the words were published falsely and maliciously) malice need never be proved at the trial; the words are actionable, if false and defamatory, although published inadvertently or with an honest belief in their truth. Unless the occasion be privileged, malice is no part of the cause of action;

"nor is there any instance of a verdict for a defendant on the ground of want of malice. Numberless occasions must have occurred (particularly in cases where a defendant only repeated what he had before heard, but without naming the author) upon which, if that were a tenable ground, verdicts would have been sought for and obtained; and the absence of such instance is a proof of what has been the general and universal opinion upon the point." 1

any

Thus, where the printers of a newspaper by a mistake in setting up the type inserted the name of a firm under the heading "First Meetings under the Bankruptcy Act" instead of under "Dissolutions of Partnership," the firm recovered damages from the proprietor of the paper, although an ample apology had been made and no damage had followed the publication, and there was no suggestion of malice. Similarly damages were recovered where the proprietors of a newspaper in all innocence announced that a lady, who had in fact been married only a month, had given birth to twins.3

The plaintiff need give no evidence that the words are false; it is always presumed in his favour that they are untrue; it is for the defendant to prove that his words are true. Nor need the plaintiff, as a rule, show that he has sustained any actual pecuniary loss. If in any given case the words employed by the defendant have appreciably injured the plaintiff's reputation, he has suffered an injury which is actionable without proof of any other damage. Every man has an absolute right to have his person, his property and his reputation preserved inviolate. In some cases an injury to the reputation of another is treated as a crime; * in all cases it is prima facie a tort and actionable, as a rule, without proof of special damage caused to the plaintiff thereby. Just as any invasion of a man's property is actionable without proof of any pecuniary loss, so is any serious disparagement of his good name. But in many cases, where the words are only spoken and are not of so grave an import that they must necessarily damage the reputation of the plaintiff, the law refuses to presume any injury to the plaintiff and requires

4

1 Per Bayley, J., in Bromage v. Prosser (1825), 4 B. & C. at p. 257.

2 Shepheard v. Whitaker (1875), L. R. 10 C. P. 502.

3 Morrison v. Ritchie & Co. (1902), 4 F. 645 (Ct. of Sess.).

4 See ante, pp. 176, 181–183.

strict proof of some actual pecuniary loss, flowing directly from the defendant's publication of the defamatory words.

In order, then, to establish a prima facie case in an ordinary action of libel, the plaintiff has only to prove that the defendant has published written or printed words defamatory of the plaintiff. In all actions of slander the plaintiff has to prove that the defendant spoke and published words defamatory of the plaintiff, and in many cases he must go further and show that special damage to himself has ensued from their utterance.

(i.) Publication.

First, then, the words must be published. They must be published by the defendant who is sued in the action, or by some one who is his agent in that behalf. They must be published to some third person, not merely to the plaintiff himself, for a publication only to a person defamed is in a civil action no publication at all. A publication to the plaintiff's wife is sufficient; but a publication by the defendant to his own wife gives rise to no cause of action, because communications between husband and wife are "held sacred."5 Publication by the defendant to his own clerk or typist is a publication in law, although the occasion is often privileged.

4

A libel may be published in various ways, e.g., by reading it aloud, by selling it or distributing it gratis, by sending it through the post or otherwise to any third person who opens and reads it. A letter is published as soon as it is posted, provided it is subsequently opened in due course and read by any third person."

The two cases of Pullman v. Hill and Borsius v. Goblet Frères may be usefully contrasted. In the former a letter containing the alleged libel 1 See post, pp. 522, 525.

2 See Parkes v. Prescott (1869), L. R. 4 Ex. 169.

8 It is otherwise in criminal proceedings; see ante, p. 172.

4 Wenman v. Ash (1853), 13 C. B. 836; Jones v. Williams (1885), 1 Times L. R. 572.

8

Per Manisty, J., in Wennhak v. Morgan (1888), 20 Q. B. D. at p. 639.

6 See Huth v. Huth, [1915] 3 K. B. 32; Powell v. Gelston, [1916] 2 K. B. 615. 7 [1891] 1 Q. B. 524.

[1891] 1 Q. B. 842; followed in Edmondson v. Birch & Co., Ltd., [1907]

K. B. 371, and in Roff v. British and French Chemical Manufacturing Co., [1918] 2 K. B. 677.

was dictated to a shorthand clerk, who subsequently wrote the letter out in longhand. After being copied by an office boy in a press copy-book, it was sent addressed to the plaintiffs, and was opened by one of the plaintiffs' clerks. The Court of Appeal decided that there was publication to the clerks both of the plaintiffs and defendants and that neither occasion was privileged. In the latter case a solicitor dictated to his clerk a letter, written on behalf of his client. The letter, which contained the alleged libel, was addressed and sent to the plaintiff after having been copied into the letter-book by another clerk. The publication to the solicitor's clerks was held by the Court of Appeal to have been necessary and usual and in the interest of the client, and so privileged.

If a man desires and intends and does all in his power to publish defamatory words, and yet they never reach the eyes of any one except the plaintiff himself, no action lies. On the other hand, if a man unintentionally or accidentally publishes defamatory words to a third person, an action will lie. This is so whenever the defendant himself composed or wrote the libel, or caused it to be printed or written. The rule is the same whenever the defendant had read the words, and was therefore aware of their libellous character, before he published them. But where the defendant did not himself compose or write the words or cause them to be printed, and has not himself read them, he will not be liable, if he can satisfy the jury that he was guilty of no negligence and was not to blame in the matter.

Thus, the sale of every written or printed copy of a libel is prima facie an actionable publication. But if the defendant is a newsvendor who neither wrote nor printed the libel, but merely sold the newspaper containing it in the ordinary way of his business, and who neither knew nor ought to have known that that newspaper did contain or was likely to contain any libellous matter, he will not be deemed to have published the libel which he thus innocently disseminated.2

(ii.) What do the words mean?

Whether the words complained of are defamatory or not, or are actionable or not, must in every case depend on the meaning which the words conveyed to those who read or heard them. Before words can injure any one's reputation, 1 See ante, pp. 516, 517.

Emmens v. Pottle (1885), 16 Q. B. D. 354; Haynes v. De Beck (1914), 31 Times L. R. 115.