An action for the earliest opportunity afterwards, he has inserted in such newspaper or other periodical publication a full apology for the said libel, or, if such newspaper or other periodical publication shall be ordinarily published at intervals exceeding one week, that he has offered to publish the said apology in any newspaper or other periodical publication to be selected by the plaintiff in such action; and that every such defendant shall upon filing such plea be at liberty to pay into court a sum of money by way of amends for the injury sustained by the publication of such libel (i). This latter provision is not, however, now of the importance it formerly was, as under the Judicature Act, 1875, money may be paid into Court in all actions (k). An action of libel may be brought at any time within brought within six years of publication thereof (1). libel must be six years. Liability for fresh publication of libel. Definition of slander. If a person, to whom a libel is published, in his turn publishes it again, he is liable in respect of it, as well as the original libeller, even though he believed it to be true (m). Slander may be defined as the malicious defamation of another person, not in writing, but simply by word of mouth (n). For ordinary slander the only remedy of the person slandered is to bring an action for damages, for the injury done to him is not so great as by libel, which, being in writing or the like, is more (i) 6 & 7 Vict. c. 96, s. 2. By 8 & 9 Vict. c. 75, s. 2, it is provided that it shall not be competent for a defendant to plead an apology as stated in the text, without at the same time making a payment of money into Court. (k) 38 & 39 Vict. c. 77, Ord. xxx. r. I. See Indermaur's Manual of Practice, 71, 72. (1) 21 Jac. 1, c. 16, s. 3. (m) McPherson v. Daniels, 10 B. & C. 273; Tidman v. Ainslie, 10 Ex. 63; Botterill v. Whytehead, 41 L. T. 588. (") For various definitions of slander, see Starkie on Slander and Libel, 3, 4. prosecution lasting and permanent in its nature, while slander, being but by word of mouth, is from its very nature fleeting; but in some exceptional cases of slander, e.g., Cases in which where the words used are seditious, grossly immoral a criminal or blasphemous, or addressed to a magistrate with will lie for reference to his duties or whilst he is performing his duties, or uttered as a challenge to fight a duel or to provoke such a challenge, a criminal prosecution will lie (0). slander. slander. As to what words will be sufficient to enable a person Instances of to maintain an action of slander, may be instanced words imputing a crime to any one, as generally that he is a thief, or particularly that he has committed such and such a wrongful act, but it is not necessary that the words used should be so extreme as that, and generally speaking any defamatory words causing damage will give rise to the action. On the other hand, there are many cases of words merely spoken which confer no right of action, although had they been written they would have (p). Words made use of expressing simply a suspicion (q), or charging another with having evil desires and inclinations, but not stating that they have been brought into action, are not actionable (r); but if they go beyond that, and charge another with actually having evil principles, then it seems they are (s). The facts to be proved in an action of slander will Facts to be proved in an generally be three, viz.: I. The uttering of the slan- action for derous words; 2. The malice of the defendant; 3. The damages caused to the plaintiff. and slander. The first point will involve the question of whether what words or not the words are really defamatory; and to render will be defa (0) See Starkie on Slander and Libel, 587. (p) l'Anson v. Stuart, 1 T. R. 748. (9) Simmons v. Mitchell, L. R. 6 App. Cas. 156; 50 L. J. P. C. 11; 29 W. R. 401. (r) Harrison v. Stratton, 4 Esp. 218. (s) Prince v. Howe, 1 Bro. P. C. 64. matory. The malice required is them so they must be such that, if not the whole world, at any rate some persons would have taken them in a defamatory sense (t). The question as to the meaning of the words used is,-in what sense did the person uttering them mean them to be understood? (u) But although words, if they stood by themselves, might be defamatory and actionable, yet it is quite possible that they may be controlled by other words made use of at the same time, so as to prevent them having the ordinary usual and primary meaning that they otherwise would have had (x). The malice that is required is only malice in a legal only malice in sense, which will be implied if the uttering of the defamatory words is proved (y). law. Special damage in an action for slander. We have stated that the third essential of proof in must be proved all actions of slander will be the damages caused by the defamatory words, for generally speaking, unless the slander has been productive of damage, no action lies, in which respect slander differs from libel; for in the former we have pointed out that the plaintiff will at any rate be entitled to a nominal verdict, although he may not give one atom of evidence that the libel has caused him any injury (*). In some few cases this is also so in slander; and when so, the words used are said to be words actionable in themselves, and they are as follows (a): Except in three cases. 1. Imputing offence. I. Where an indictable offence, or actual conviction an indictable thereof, is imputed, and it is not necessary that the crime should be technically described, for any words by which it would ordinarily be understood are suffi (t) Ante, p. 345. (u) Read v. Ambridge, 6 C. & P. 308. (x) Shipley v. Todhunter, 7 C. & P. 680. (y) As to malice in fact and malice in law, see ante, p. 340. (2) Ante, pp. 343, 344. (a) See Starkie on Slander and Libel, 70. cient (b); nor is it necessary to particularly specify any crime; it is sufficient if a person says he has a right to have another punished (c). General terms of abuse, such as rogue, rascal, scoundrel, &c., are not words actionable in themselves, for they do not impute any precise and definite offence punishable in the courts of justice (d). 2. Where the words used impute to the defendant a 2. Imputing a contagious contagious or infectious disorder, which may have the disorder. effect of excluding him from society (e), e.g., the leprosy or the itch. It is not, however, sufficient to say that a person has at some past time had such a disorder (ƒ). incompetence employment. 3. Where the words used impute to the defendant 3. Imputing some incompetence in his office, trade, profession, or in a trade, calling, or tend to injure or prejudicially affect him profession, or therein. Thus, words imputing to a solicitor in any way that he is a knave (g), or that he deserves to be struck off the rolls (h), come within this category. So, also, to say of a doctor that none of the other medical men in the town will meet him, is in itself actionable (i), and so are words imputing indigent circumstances to a banker (k). The great criterion to ascertain whether or not words do come within this heading is, do they directly touch or affect the plaintiff in his office, trade, profession, or calling? If they do, then they are actionable in themselves (1). To render words actionable in themselves as coming (b) Coleman v. Godwin, 3 Doug. 90. (e) Ibid. 108, 109. (f) Carslake v. Mapledoram, 2 T. R. 473. (g) Day v. Buller, 3 Wils. 59. (h) Per Kenyon, C.J., Phillips v. Jansen, 2 Esp. 624. (i) Southee v. Denny, 1 Ex. 196. (k) Robinson v. Marchant, 7 Q. B. 918. (1) Starkie on Slander and Libel, 119; see Black v. Hunt, Ir. Reps. 2 Q. B. D. 10. Proof of special damage, however, always given when possible, for the sake of enhancing the damages. The truth of slander is an answer to an within this third class, it matters not how humble the calling or employment of the plaintiff may be; thus, menial servants have been held entitled to maintain an action for words spoken against them in their employment without any proof of special damage (m). It is only important to prove that words come within one of these three classes when special damage cannot be proved; and, of course, proof of special damage is when possible always given for the purpose of enhancing the amount of the damages. The truth of slanderous matter will form a perfect defence to any action in respect of it on the like action for it. principle that, as has been stated (n), the truth of a libel may be set up as a defence to an action for damages. This point is extremely well put in Mr. Starkie's work on Slander and Libel (o), as follows: "It is essential to the claim for damages that the imputation should be false; for, as in point of natural justice and equity, no one can possibly have any claim or title to a false character, so also would it be contrary to the principles of public policy and convenience to permit a man to make gain of the loss of that reputation which he had forfeited by his misconduct. In foro conscientiæ it is no excuse that the slander is true; but in compassion to men's infirmities, and because if the words spoken are true the individual of whom they are spoken cannot justly complain of any injury, the law allows the truth of the words to be a justification in an action for slander." (m) Connors v. Justice, 13 Ir. C. L. R. 451. In addition to the three cases given above in which an action of slander may be maintained without proof of special damage, it may be mentioned that calling a woman a whore, or otherwise imputing unchastity to her, is by itself actionable in the City of London courts; and so calling a woman a strumpet in the city of Bristol is actionable there by the custom of the place. See Fisher's C. L. Digest (tit. "Defamation"), 3061, 3062. (n) Ante, p. 352. (0) Page 69. |