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Chap. XIII.

CHAPTER XIII.

INJUNCTIONS AGAINST THE PUBLICATION OF LIBEL AND

SLANDER OF TITLE.

THE Court has jurisdiction to restrain by injunction the publication of a libel or the making of slanderous statements calculated to injure a man in his business and also a mere personal libel (a).

The jurisdiction, however, to restrain on interlocutory application the publication of a libel is of a delicate nature, and must be exercised with caution (1). There are cases in which it would be quite proper to exercise the jurisdiction, as, for instance, in the case of an atrocious libel wholly unjustified and inflicting serious injury on the plaintiff. But, on the other hand, where there is a case to try and no immediate injury to be expected from the further publication of the libel, the Court will be unwilling to interfere by interlocutory injunction (e). The jurisdiction will not, as a general rule, be exercised unless the Court is satisfied that the statement in the libel is untrue, and that the publication proposed to be restrained is of such a character that any jury would find it libellous, and where, if the jury did not so find, the Court would set aside the verdict as unreasonable (d). Still more caution is requisite where the document is primâ facie a privileged communication, so as not to be actionable unless express malice is proved, the question of malice being

(a) See Monson v. Tussaud, (1894) 1 Q. B. 671 (C. A.); and see ante, p. 6.

(b) Salomons v. Knight, (1891) 2 Ch. 294 (C. A.); Monson v. Tussaud,

ante.

(c) Quartz Hill, &c., Mining Co.

v. Beall, 20 C. D. p. 508; and see Salomons v. Knight and Monson V. Tussaud, ante.

(d) Coulson v. Coulson, 3 T. L. R. 846; Bonnard v. Perryman, (1891) 2 Ch. 269, 284 (C. A.).

one which cannot be satisfactorily tried on interlocutory Chap. XIII. application (e).

statements

In a case where a solicitor acting for some shareholders in a Defamatory company printed and circulated, but only among shareholders, in the case of a circular containing very strong reflections on the mode in companies. which the company had been brought out and on the conduct of the promoters and directors, and proposing a meeting of shareholders to take steps to promote their interests, the Court not being satisfied that the statements in the document were false or malicious would not interfere by interlocutory injunction (f).

The Court will not grant an interlocutory injunction which will restrain the fair discussion in a newspaper of matters of such importance as that of the probable success or failure of a public company; although if anything is published in a newspaper which is grossly libellous, there is ground for an injunction. A newspaper occupies a peculiar position, especially with regard to matters of public interest which concern those among whom the paper circulates, such as the position and prospects of a public company (g).

Nor will the Court grant an injunction with reference to the publication in future of statements in respect to which the Court cannot possibly decide whether a jury would find them to be libellous or not (h). In a case where a trading company claimed an interlocutory injunction to restrain the publication in a newspaper of letters and statements in the future similar to those which had been already inserted in the same newspaper reflecting on the solvency and financial condition of the company, the Court would not interfere, on the ground that it would be almost, if not entirely, impracticable so to frame the injunction as not possibly to include in its terms something

(e) Quartz Hill, &c., Mining Co. v. Beall, 20 C. D. p. 509; Société &c., de Glaces v. Tilghman's, &c., Co., 25 C. D. 1; Poulett v. Chatto, W. N. (1887) 192.

(f) Quartz Hill, &c., Mining Co. v. Beall, 20 C. D. 501 (C. A.).

(g) Liverpool, &c., Stores Associa

tion v. Smith, 37 C. D. 170 (C. A.).

(h) Liverpool, &c., Stores Association v. Smith, 37 C. D. 170 (C. A.); and see Plumbly v. Perryman, W. N. (1891) 64, where North, J., said the action ought to be transferred to the Q. B. D. for trial before a jury.

Chap. XIII.

Injunctions

of title.

that might not be libellous; and if an injunction were granted in terms confined to the publication of "libellous" letters, it would have to be decided on motion to commit whether what was published was libellous or not (i).

Nor will the Court interfere upon interlocutory application to restrain the further publication of a libel where the mischief, if Iany, has been done, and there is no intention on the part of the defendant to issue any more libellous statements (k).

The Court has jurisdiction to restrain a man from making against slander slanderous statements calculated to injure another man in his business (1). The jurisdiction extends to oral as well as written statements, though it requires to be exercised with great caution as respects oral statements (m). The Court will not, however, restrain by injunction the publication of statements which are in the nature of a slander of title or are to the injury of another in his trade, unless it is proved to the satisfaction of the Court that those statements are false to the knowledge of the party making them, or that they have not been made in the bona fide belief that they are true (n).

There is no threats action in respect of trade marks as there is in the case of patents. The publication in good faith of a statement that the plaintiff is infringing the defendant's trade mark, and that defendant intends to proceed against all persons dealing in the infringing goods cannot be restrained by injunction ().

But disparaging statements calculated to injure the plaintiff's trade or to diminish the value of his goods, if not made in good faith, are actionable, and the continued publication of them after they have been shown to be untrue may be restrained (p), for they amount to trade libels or slander of title.

(i) Liverpool, &c., Stores Association v. Smith, 37 C. D. 170 (C. A.). (k) Quartz Hill, &c., Mining Co. v. Beall, 20 C. D. 501, 509 (C. A.). (1) Collard v. Marshall, (1892) 1 Ch. 571, 577; and see ante, p. 436. (m) Hermann Loog v. Bean, 26 C. D. 306.

(n) Halsey v. Brotherhood, 15 C. D. 514, 19 C. D. 386; Société, &c., de Glaces v. Tilghman's, &c., Co., 25 C. D. 1.

D.

(0) Colley v. Hart, 6 R. P. C. 17. (p) Halsey v. Brotherhood, 19 C. p. 392.

A fair warning to the public by a trader that he regards Chap. XIII. the conduct of another as an infringement, if made in good faith, is not libellous though it may turn out to be mistaken (q). So anyone who thinks his trade name is likely to be confused with another, may publish a warning that there is no connection between the two (1), and this notwithstanding the pendency of proceedings in which the right to use the name comes in question (s), but, pending such proceedings, one party may not say that the goods of the other party are spurious or not genuine (t).

A mere puff of the defendant's own goods or a statement Trade libels. that they are superior to those of a rival trader, even if untrue and made maliciously and the cause of damage to the latter, is not actionable (u). In an action in reference to a false statement disparaging a trader's goods (as distinguished from a personal libel) proof of special damage is essential (x), but evidence of a general falling off of business is admissible to prove such special damage (y).

The publication of a misleading report of a trade mark action or of an order made therein, may be a trade libel falling within the principle of the above cases (2).

In a recent case (a) an injunction was granted to restrain the publication of a false statement that the plaintiff bank was in liquidation.

In Dockrell v. Dougall (b) it was held that the plaintiff, a doctor, whose name had been used without his authority in an advertisement to puff the sale of a medicine, had no cause of action either for damages or for an injunction unless he could show that the publication was defamatory, or was injurious to him in his property or profession.

() Dicks v. Brooks, 15 C. D.

P. 40.

(r) Thorley's Cattle Food Co. v. Massam, 14 C. D. 763, 783.

(8) Coats v. Chadwick, (1894) 1 Ch. 347.

(t) Ib.; but see In re New Gold Coast, &c., Co., (1901) 1 Ch. 860. (u) Hubbuck v. Wilkinson, (1899) 1 Q. B. 86 (C. A.).

(x) White v. Mellin, (1895) A. C 154; Royal Baking Powder Co. v. Wright, 18 R. P. C. 95.

(y) Ratcliffe v. Evans, (1892) 2 Q. B. 524 (C. A.).

(z) Hayward & Co. v. Hayward and Sons, 34 C. D. 198.

(a) London and Northern Bank v. George Newnes, Ltd., 16 T. L. R. 76. (b) 80 L. T. 356 (C. A.).

Chap. XIII. Interlocutory injunction.

Patents, &c., Act of 1883, s. 32.

The Court will not interfere by interlocutory injunction to restrain a trade libel unless it is satisfied that the statements are false (c), however much the balance of convenience may be in favour of staying the publication (d). The reluctance of the Court to interfere by interlocutory injunction in the case of trade libels is as strong as it is in the case of personal libels (e).

If in a judicial proceeding the statements in question have been proved to be false in fact, or to be libellous, an injunction will be granted against continuing them, as that would be proof of mala fides (f).

Under the law as it existed before the Patent Act of 1883 a man who had a bona fide belief that he had a patent right might issue circulars or advertisements threatening legal proceedings against persons infringing it. It was immaterial that his belief was without foundation. It was enough that he had a bona fide belief that his allegations were true (g). But it is enacted by sect. 32 of the Patent Act of 1883, that where any person claiming to be patentee of an invention, by circulars, advertisements or otherwise threatens any other person with any legal proceedings or liability in respect of any alleged manufacture, use, sale or purchase of the invention, any person or persons aggrieved thereby may bring an action against him and may obtain an injunction against the continuance of such threats, and may recover such damages, if any, as may have been sustained thereby, if the alleged manufacture, use, sale or purchase to which the threats related was not in fact an infringement of any legal rights of the person making such threats; provided that this clause shall not apply, if the person making such threats with due diligence commences and prosecutes an action for an infringement of his patent (h).

(c) Collard v. Marshall, (1892) 1 Ch. 571.

(d) Société Anonyme des Manufactures v. Tilghman's Co., 25 C. D. 1 (C. A.).

Birmingham

(e) Champion V.
Vinegar Co., 10 T. L. R. 163.
(f) Saxby v. Easterbrook, 3 C. P.

D. 339.

(g) Halsey v. Brotherhood, 19 C. D. 386 (C. A.); Driffield v. Waterloo Mills, 31 C. D. 638.

(h) 46 & 47 Vict. c. 57, s. 32. The threats of legal proceedings referred to in sect. 32, need not relate to acts already committed, but may also

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