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LIBEL and SLANDER
justification
The earlier history of the English law of defamation is some-what obscure. Civil actions for damages seem to have been tolerably frequent so far back as the reign of Edward I. There was no distinction drawn
Civil Law.The first important distinction encountered is that between slander
heir (other cases of slander of title when the party is in possession requiring the allegation of special damage); the accusing a woman of unchastity (Slander of Women Act 1891); and, lastly, slanders directed against a man's professional or business character, which tend directly to prejudice him in his trade, profession, or means of livelihood. In the latter case the words must either be directly aimed at a man in his business or official character, or they must be such as necessarily to imply unfitness for his particular office or occupation. Thus words which merely reflect generally upon the moral character of a tradesman or professional man are not actionable, but they are actionable if directed against his dealings in the course of his trade or profession. But, in the case of a merchant or trader, an allegation which affects his credit generally is enough, and it has been held that statements are actionable which affect the ability or moral characters of persons who hold offices, or exercise occupation which require a high degree of ability, or infer peculiar confidence. In every case the plaintiff must have been at the time of the slander in the actual exercise of the occupation or enjoyment of the office with reference to which the slander is supposed to have affected him.The action for libel is not restricted in the same way as that for slander. Originally there appears to have been no essential distinction between them, but the establishment of libel as a criminal offence had probably considerable influence, and it soon became settled that written defamatory statements, or pictures and other signs which bore a defamatory meaning, implied greater malice and deliberation, and were generally fraught with greater injury than those made by word of mouth. The result has been that the action for libel is not limited to special grounds, or by the necessity of proving special damage. It may be founded on any statement which disparages a man's private or professional character, or which tends to hold him up to hatred,536 LIBEL AND contempt or ridicule. In one of the leading cases, for example, the plaintiff obtained damages because it was said of him that he was a hypocrite, and had used the cloak of religion for unworthy purposes. In another case a charge of ingratitude was held sufficient. In civil cases the libel must be published by being brought by the defendant under the notice of a third party; it has been held that it is sufficient if this has been done by gross carelessness, without deliberate intention to publish. Every person is liable to an action who is concerned in the publication of a libel, whether he be the author, printer or publisher; and the extent and manner of the publication, although not affecting the ground of the action, is a material element in estimating the damages. It is not necessary that the defamatory character of the words or writing complained of should be apparent on their face. They may be couched in the form of an insinuation, or may derive their sting from a reference to circumstances understood by the persons to whom they are addressed. In such a case the plaintiff must make the injurious sense clear by an averment called an innuendo, and it is for the jury to say whether the words bore the meaning thus ascribed to them. In all civil actions for slander and libel the falsity of the injurious statements is an essential element, so that the defendant is always entitled to justify his statements by their truth; but when the statements are in themselves defamatory, their falsity is presumed, and the burden of proving their truth is laid upon the defendant. There are however a large class of false defamatory statements, commonly called privileged, which are not actionable on account of the particular circumstances in which they are made. The general theory of law with regard to these cases is this. It is assumed that in every case of defamation intention is a necessary element; but in the ordinary case, when a statement is false and defamatory, the law presumes that it has been made or published with an evil intent , and will not allow this presumption to be rebutted by evidence or submitted as matter of fact to a jury. But there are certain circumstances in which the natural presumption is quite the other way. There are certain natural and proper occasions on which statements may be made which are in themselves defamatory, and which may be false, but which naturally suggest that the statements may have been made from a perfectly proper motive and with entire belief in their truth. In the cases of this kind which are recognized by law, the presumption is reversed. It lies with the plaintiff to show that the defendant was actuated by what is called express malice, by an intention to do harm, and in this case the question is not one of legal inference for the court, but a matter of fact to be decided by the jury. Although, however, the theory of the law seems to rest entirely upon natural presumption of intention, it is pretty clear that in determining the limits of privilege the courts have been almost wholly guided by considerations of public or general expediency.In some cases the privilege is absolute, so that we cannot have an action for defamation even although we prove express malice. Thus no action of this kind can be maintained for statements made in judicial proceedings if they are in any sense relevant to the matter in hand. In the same way no statements or publications are actionable which are made in the ordinary course of parliamentary proceedings. Papers published under the authority of parliament are protected by a special act, 3 & 4 Vict, c. 9, 1840, which was passed after a decree of the law courts adverse to the privilege claimed. The reports of judicial and parliamentary proceedings stand in a somewhat different position, which has only been attained after a long and interesting conflict. The general rule now is that all reports of parliamentary or judicial proceedings are privileged in so far as they are honest and impartial. Even ex parte proceedings, in so far as they take place in public, now fall within the same rule. But if the report is garbled, or if part of it.only is published, the party who is injured in consequence is entitled to maintain an action, and to have the question of malice submitted to a jury. Both absolute and qualified privilege are given to newspaper reports under certain conditions by the Law of Libel Amendment Act 1'888. The reports must, however, be published in a news-paper as defined in the Newspaper Libel and Registration Act 1881. Under this act a newspaper must be published " at intervals not exceeding twenty-six days." By s. 3 of the act of 1888 fair and accurate reports of judicial proceedings arc absolutely privileged provided that the report is published contemporaneously with the proceedings and no blasphemous or indecent matter is contained therein. By s. 4 a limited privilege is given to fair and accurate reports (I) of the proceedings of a bona fide public meeting lawfully held for a lawful purpose and for the furtherance and discussion of any matter of public concern, even when the admission thereto is restricted; (2) of any meeting, open either to the public or to a reporter, of a vestry, town council, school board, board of guardians, board of local authority, formed or constituted under the provisions of any act of parliament, or of any committee appointed by any of these bodies; or of any meeting of any commissioners authorized to act by letters patent, act of parliament, warrant under royal sign manual
chief
In private life a large number of statements are privileged so long as they remain matters of strictly private communication. It is difficult to define the limits of private privilege without extensive reference to concrete cases; but generally it may be said that it includes all communications made in performance of a duty not merely legal but moral or social, answers to bona fide inquiries, communications made by persons in confidential relations regarding matters in which one or both are interested, and even statements made within proper limits by persons in the bona fide prosecution of their own interest
In a few instances in which an action cannot be maintained even by the averment of malice, the plaintiff may maintain an action by averring not only malice but also want of reasonable and probable cause. The most common instances of this kind are malicious charges made in the ordinary course of justice and malicious prosecutions. In such cases it would be contrary to public policy to punish or prevent every charge which was made from a purely malicious motive, but there is no reason for protecting accusations which are not only malicious, but destitute of all reasonable probability. Criminal Law.Publications which are blasphemous, immoral or seditious are frequently termed libels, and are punishable both at common law and by various statutes. The matter, however, which constitutes the offence in these publications lies beyond our present scope. Libels upon individuals may be prosecuted by criminal information or indictment, but there can be no criminal prosecution for slander. So far as concerns the definition of libel, and its limitation by the necessity of proving in certain cases express malice, there is no substantial difference between the rules which apply to criminal prosecutions and to civil actions, with the one important exception (now considerably modified) that the falsity of a-libel is not in criminal law an essential element of the offence. If the matter alleged were in itself defamatory, the court would not permit inquiry into its truth. The sweeping application of this rule seems chiefly due to the indiscriminate use, in earlier cases, of a rule in Roman law which was only applicable to certain modes of publication, but has been supported by various reasons of general policy, and especially by the view that one main reason for punishing a libel was its tendency to provoke a breach of the peace. An important dispute about the powers of the jury in cases of libel arose during the 19th century in connexion with some well-known trials for seditious libels. The point is familiar to readers of Macaulay in connexion with the trial of the seven bishops, but the cases in which it was brought most prominently forward, and which led to its final settlement, were those against Woodf all (the printer of Junius), Wilkes and others, and especially the case against Shipley, the dean of St Asaph (21 St. Tr. 925), in which the question was fought by Lord Erskine with extraordinary energy and ability. The controversy turned upon the question whether the jury were to be strictly confined to matters of fact which required to be proved by evidence, or whether in every case they were entitled to form their own opinion upon the libellous character of the publication and the intention of the author. The jury, if they pleased, had it in their power to return a general verdict of guilty or not guilty, but both in theory and practice they were subject in law to the directions of the court, and had to be informed by it as to what they were to take into consideration in determining upon their verdict. There is no difficulty about the general application of this principle in criminal trials. If the crime is one which is inferred by law from certain facts, the jury are only concerned with these facts, and must accept the construction put upon them by law. Applying these principles to the case of libel, juries were directed that it was for the court to determine whether the publication fell within the definition of libel, and whether the case was one in which malice was to be inferred by construction of law. If the case were one in which malice was inferred by law, the only facts left to the jury were the fact of publication and the meaning averred by innuendoes; they could not go into the question of intention, unless the case were one of privilege, in which express malice had to be proved. In general principle, therefore, the decisions of the court were in accordance with the ordinary principles of criminal law. But there were undoubtedly some peculiarities in the case of libel. The sense of words, the inferences to be drawn
interest
intent of the authors, which is precisely the question which would now be put before them in any matter which concerned the public. But at that time the notion of a special privilege attaching to political discussion had scarcely arisen, or was confined within very narrow limits, and the cause of free political discussion seemed to be more safely entrusted to juries than to courts. The question was finally settled by the Libel Act 1792, by which the jury were entitled to give a general verdict on the whole matter put in issue.Seats Law.In Scots law there were originally three remedies for defamation. It might be prosecuted by or with the concurrence of the lord advocate before the court of justiciary; or, secondly, a criminal remedy might be obtained iu the commissary (ecclesiastical) courts, which originally dealt with the defender by public retractation or penance , but subsequently made use of fines payable to their ownprocurator or to the party injured, these latter being regarded as solatium to his feelings; or, lastly, an action of damages was competent before the court of session, which was strictly civil in its character and aimed at the reparation of patrimonial loss. The first remedy has fallen into disuse; the second and third (the commissary courts being now abolished) are represented by the present action for damages or solatium. Originally the action before the court of session was strictly for damagesfounded, not upon the animus injuriandi, but upon culpa, and could be defended by proving the truth of the statements. But in time the court of session began to assume the original jurisdiction of the commissary courts, and entertained actions for solatium in which the animus injuriandi was a necessary clement, and to which, as in Roman law, the truth was not necessarily a defence. Ultimately the two actions got very much confused. We find continual disputes as to the necessity for the animus injuriandi and the applicability of the plea of veritas convicii, which arose from the fact that the courts were not always conscious that they were dealing with two actions, to one of which these notions were applicable, and to the other not. On the introduction of the jury court, presided over by an English lawyer, it was quite natural that he, finding no very clear distinction maintained between damage and solatium, applied the English plea of truth as a justification
American Law.American law scarcely if at all differs from that of England. In so far indeed as the common law is concerned, they may be said to be substantially identical. The principal statutes which have altered the English criminal law are represented by equivalent legislation in most American states. See generally W. B. Odgers, Libel and Slander; Fraser, Law of Libel and Slander. End of Article: LIBEL If you wish, you can link directly to this article.
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