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Instances of words held

of special damage, the plaintiff may be entitled to a verdict and nominal damages, though, of course, in every case, proof of special injury done to him by the libel will tend to increase the amount of the damages that will be awarded by the jury.

Very many instances of words held to be libellous to be libellous. might be enumerated, and a few may usefully be given. In one case it was held that to write or print of a person that he was a swindler was a libel (k); in another that to write of a person that he was a black sheep or a blackleg was a libel (); in another that to write of a person that he had been black balled on an election for members of a club was libellous (m); and in another that to write of a person that he had no experience in work he was employed to do was libellous (n). Mere words of suspicion will not, however, be sufficient to constitute libel (o). There may be many cases in which the words used by the defendant, and complained of by the plaintiff as libellous, though not apparently on their face so, yet, by the special and peculiar sense in which they may be taken in any particular case, may be actually libellous; thus in one case the plaintiff complained that the defendant had libelled him by calling him a truckmaster, and the Court held that this might possibly constitute a libel, and that it must be for the jury to decide whether or not, under the circumstances, the word complained of was used in a defamatory sense (p). There may also be many cases in which a person may be libelled, although he is not actually named, if it clearly appears that he is the person against whom

(k) l'Anson v. Stuart, 1 T. R. 748.

(1) McGregor v. Gregory, 11 M. & W. 287.
(m) O'Brien v. Clement, 16 M. & W. 159.
(n) Botterill v. Whytehead, 41 L. T. 558.

(0) Simmons v. Mitchell, L. R. 6 App. Cas. 156; 50 L. J. P. C. 11 ; 29 W. R. 401.

(p) Homer v. Taunton, 29 L. J. (Ex.) 318.

the defamatory matter was aimed (q); as, for instance, by describing the plaintiff or his place of residence or business, or giving other particulars which would lead persons to apply the libel to him; and it is not necessary to prove that the whole world would take the matter as applying to the plaintiff, but it is quite sufficient to shew that some would (r). If, however, the words used are words that no ordinary reader could put a libellous construction on, the plaintiff cannot, by alleging that they have a particular intent, make them libellous. Thus in a recent case the libel complained of consisted of an advertisement stating that one M. (the plaintiff) was not any longer authorized to receive subscriptions for a certain institute, and the plaintiff brought this action, alleging that the meaning of the advertisement was that he, the plaintiff, had falsely assumed, and pretended to be authorized, to receive subscriptions on behalf of such institute. The Court held that no action was maintainable here, as the words made use of would not bear any libellous interpretation (s). In some cases, however, although words may not be libellous in their primary sense, yet evidence may be given of facts which would reasonably make them defamatory in their secondary sense; but there must be some evidence to make such words as these actionable (t); and where a plaintiff in his statement of claim annexes a meaning to words complained of, and fails by his evidence to sustain such meaning, he cannot discard that and adopt another(u).

tion of libel

To entitle a person to succeed in an action for The publicalibel he must prove the publication of it, and this, must always indeed, must be proved before any evidence can be be proved, for

(q) See l'Anson v. Stuart, 1 T. R. 748.

(r) Bourke v. Warren, 2 C. & P. 307.

(s) Mulligan v. Cole, L. R. 10 Q. B. 549; 44 L. J. (Q.B.) 153.

(t) Capital and Counties Bank v. Henty, L. R. 5 C. P. D. 514; 49 L. J. C. P. 830; 28 W. R. 851. Ruel v. Tatnell, 29 W. R. 172; 43 L. T. 507.

(u) Ruel v. Tatnell (supra).

it is no offence

to write defamatory matter and keep it private.

What will

amount to a publication.

A person ignorantly and unwittingly publishing a libel is not

liable to an action.

Malice in law is an essential to constitute a libel.

given of the contents of the libel (x); for it is not sufficient to render a person liable to an action for libel that he wrote the defamatory matter, for if he has kept it in his possession, and not in any way shewn it to a third person, he has done no harm. For instance, to write a letter to a person containing defamatory matter concerning him is not actionable if it reach his hands without being seen by any third person; so that even where such a letter, simply folded and not sealed, was delivered to a third person to carry to the other, and might have been opened and read by him but was not, it was held that no action was maintainable (y). The publication of a libel may occur in many different ways, as by the defendant actually with his own hand giving the libel to another, by inserting a libellous advertisement in a

paper (2), or by writing and sending a letter to a third person (a).

Where a porter in the course of his business and employment delivered parcels containing libellous handbills, it was held that, although he was the actual publisher of the libel, yet he was not liable to an action in respect of it, he being ignorant of the contents of the parcel (b).

Our definition of libel states it to be the malicious defamation of another (c). Malice, therefore, is an essential to constitute a libel, but by the word malice. used here is not meant malice in its ordinary sense of spite or ill-will, but malice in law as before described

(x) Starkie on Slander and Libel, 415.
(y) Clutterbuck v. Chaffers, 2 Stark. 471.
(z) Browne v. Croome, 2 Stark. 297.

(a) Phillips v. Jansen, 2 Esp. 624. Sending the libel in a letter addressed to the wife of the person libelled has been held to be a sufficient publication; Wenman v. Ash, 22 L. J. (C.P.) 190. See, generally, as to publication, Starkie on Slander and Libel, chap. 19.

(b) Day v. Bream, 2 M. & Rob. 54.

(c) Ante, p. 343.

in treating of malicious prosecution (d), viz., the intentional doing of a wrongful act without just cause

or excuse.

inferred and

Malice, therefore, is properly said to be an essential of libel, but it is inferred, and need not be But it is proved, for "where words have been uttered, or a libel need not be published, of the plaintiff, by which actual or pre- proved. sumptive damage has been occasioned, the malice of the defendant is a mere inference of the law from the very act; for the defendant must be presumed to have intended that which is the natural consequence of his act" (e).

rebut malice,

communica

But there may be cases in which special circum- Circumstances stances repel the presumption of malice that would may, however, otherwise exist, and when there are such special cir- and make a cumstances they prevent the matter complained of tion privileged. being a libel, although had they not existed it would have been, and in such cases the matter is said to be a privileged communication.

A privileged communication may therefore be de- Definition of a privileged fined as a communication which on its face would be communicalibellous, but is prevented from being so by reason of tion. circumstances rebutting the existence of malice (ƒ), and it occurs where any person having an interest to protect, or having a legal or moral duty to perform, makes a communication to another (such other having a corresponding interest or duty) in protection of his interest or in performance of his duty; here, although the communication may contain matter that would ordinarily be actionable, yet here it is not actionable if the communication is fairly and honestly made in bona fide belief of its truth and without any gross exaggeration (g). A good instance of a communica

(d) Ante, p. 340.

(e) Starkie on Slander and Libel, 451.

(f) Wright v. Woodgate, 2 C. M. & R. 573.

(g) Harrison v. Bush, 25 L. J. (Q.B.) 25; Whiteley v. Adams, 33 L.

J. (C.P.) 89.

An instance

communica

tion occurs in

the case of a

master giving

a character to his servant.

tion privileged by reason of being made in discharge of a privileged of a duty, occurs in the case of a master giving a character to his servant. It is quite true that a servant cannot compel his master to give him a character (h), but, although this is so, it is clearly the master's moral or social, though certainly not his legal, duty to do so; and if he, therefore, gives a character which he bona fide believes to be true, he is protected, and although it is in reality false it is a privileged communication (i). Thus A. has had a servant B., who, on applying for a new place, refers his intended new master to A., who, believing that B. has, during his service with him, stolen certain articles, replies to the new master's inquiries to that effect; here, if A. bonâ fide believed this statement to be true, and has made it without any exaggeration, under the circumstances, although B. can prove himself totally innocent, he has no right of action against him.

But a character voluntarily given is not privileged.

Other in

stances

communications.

If, however, a master without being applied to for a character, volunteers one, here he is performing no duty, and it will not be a privileged communication, but he will be liable if it is false (k).

Fair comments on any public proceedings, or on the of privileged conduct of public men, such as members of Parliament and the like, and fair and honest criticisms and reviews, are privileged communications, provided that in all these cases such comments, criticisms, or reviews are of an honest, fair, and bond fide character; if, however, they are not, but appear to be really malevolent, then they are not privileged (1). The law on the subject has been well stated thus: "The editor of a public

(h) Carol v. Bird, 3 Esp. 201; Smith on the Law of Master and Servant, 347.

(i) Weatherstone v. Hawkins, 1 T. R. 110; Fountain v. Boodle, 3 Q B. 5.

(k) Pattison v. Jones, 8 B. & C. 578.

(4) See Starkie on Slander and Libel, 223 et seq.; see also Dwyer v. Esmonde, Ir. Reps. 2 Q. B. (Apps.) 243.

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