The advisability of expressly averring malice.

A publica

tion of the libel essential.

What

amounts to a publication.

The plaintiff must be identified with the defamation.

officer in the army, the words following, that is to say-[Here set out verbatim the words complained of with appropriate

2. The Malice.-The next averment is that the defendant maliciously wrote or spoke, &c. Malice-the malicious act of the defendant-is so important an element in this action that, as will be shown hereafter, if once the conduct of the defendant can be so explained as to get rid of the imputation of malice, and it is made clear that no improper feeling was at the bottom of his conduct, then the liability of the defendant is at an end. It is therefore an invariable practice to aver that the defendant acted maliciously, but it is not absolutely necessary to do so. The full text of the libellous matter is always set out on the face of the pleading, and from it and the averment of its falsehood, the Court may infer the malice, though it is not alleged; but it is certainly the more advisable course, to avoid all question, to aver malice expressly. In this connection Order XIX. r. 22 must be borne in mind, "Whenever it is material to allege malice, fraudulent intention, knowledge, or other condition of the mind of any person, it shall be sufficient to allege the same as a fact without setting out the circumstances from which the same is to be inferred."

3. The Publication.-The third material averment is that the defendant published, &c. A man may compose a very injurious libel, and put it away in his desk, he may reduce defamatory statements to writing, and send them to the person whom they defame (Phillips v. Jansen, 2 Esp. 624), he may slander another to his face when no one is by; and in none of these cases will he have exposed himself to an action. The libellous or slanderous matter must be published to become actionable; and as publication is thus of the essence of the action, it is necessary that the pleader should specially aver the fact in the statement of claim. It is not within the scope of this work to discuss what constitutes a publication of a libel or slander. This much may be said: it is not necessary that the libel should have attained any widespread publicity. If by the act of the defendant it has obtained any publicity beyond the defamer and the defamed, if any third person,-even the plaintiff's wife (Wenman v. Ash, 13 C. B. 836)—has seen it, that is enough. Thus a slander uttered in the presence of the defamed and a third person is published, and a libel written in a letter intended for the person libelled, and misdirected by the defendant to another, is published as soon as that other reads it, and from that moment the plaintiff has a ground of action. (Fox v. Broderick, 14 Ir. C. L. R. 453.)

4. Connection of the Plaintiff with the Defamation.-But not only must the defamatory matter be alleged to be published, to be false and to be malicious, it must also be alleged to be spoken of and concerning the plaintiff. The plaintiff seeks damages in respect of an injury done to his reputation. It may well be that the defendant is the author of a most abominable libel; but unless the plaintiff avers and proves that the defamation has reference to him and is a reflection upon his character, he makes out no case. Hence the necessity for averring, as is always done, that the words complained of were spoken, &c., and published “ of the plaintiff," or "of and concerning the plaintiff;" and the necessity of this averment is only dispensed with where the libellous matter itself manifestly points and applies to the plaintiff. But the necessity of strictly identifying the plaintiff with the defamatory matter does not end with this general averment. In the body of the pleading the full text of the libel or slander is set out, and here it is the duty of the pleader, wherever it is necessary to interpolate an averment or innuendo," as it is called, connecting the plaintiff with any statement which on its face may not seem clearly to apply to him, but which was

innuendoes], meaning thereby that the plaintiff had been removed from the army for misconduct, and that he had not conducted himself as an officer and a gentleman.

The plaintiff claims £1000 damages.

intended to apply to him. Instances of these innuendos will be found in the text. What the pleader has to secure is this, that by the plain words of the libel or slander, plus the innuendos introduced by him, it may clearly appear on the face of the claim that the defamation applies to the plaintiff, and not to some other person.

The defamatory

matter

must be

5. The Defamatory Matter.-Next, it is essential that the libellous or slanderous words be set out at length. The very words used must be given. Merely setting out the effect of the words would not be enough. (Gatsole v. Mathers, 1 M. & W. 495); and the recent case of Harris v. Warre, 48 L. J. C. P. 310; 4 C. P. Div. 215, to the same effect. Neither set out would a claim charging a libel "in substance as follows" (Wright v. verbatim. Clements, 3 B. & Ald. 503), or "purporting" (Wood v. Brown, 6 Taunt. 169); so a claim charging that the defendant “asserted and accused the plaintiff of." (Cook v. Cox, 3 M. & S. 110.) The words must be set out as used, so that the Court may judge whether they are capable of a defamatory meaning, and the jury say whether they have a defamatory meaning in fact.

If the libel or slander is in a foreign language, it would not be correct Where the to set out merely a translation. The original words must be stated, and libel is in then the meaning explained in English. (Zenobio v. Axtell, 6 T. R. 162.) a foreign In the case supposed of a libel in a foreign language, it would also be language. necessary to aver in the statement of claim that someone who read the libel, or in whose hearing it was uttered, understood the language, else there would be no publication. (1 Wms. Saund. 242.) It has been already pointed out that it is necessary that it should appear, either by the words themselves or the words aided by proper innuendos, that the defamatory matter applied to the plaintiff. It is equally necessary that it should appear on the face of the claim that the words complained of constitute a libel or slander. If, as is frequently the case, the words bear a plain meaning and that a defamatory one, nothing remains to be added; but where the meaning of some of the expressions is ambiguous, or even innocent in their natural meaning, it becomes necessary for the pleader to aver that the defendant used the words in a particular defamatory sense, and that defamatory sense he must specify.

Special Damage. There is much learning to be found in the books as What to what constitutes special damage, sufficient to make oral defamation amounts to actionable. The subject is very fully discussed in the notes to Vicars special v. Willcock (2 Smith's Leading Cases). See also Riding v. Smith. damage. (45 L. J. 281; 1 Ex. Div. 91.) It is not every injury or loss to the defendant, resulting from the speaking of the slander, that is regarded as special damage. To be actionable, the special damage must be the natural and proximate consequence of the defamation. Thus, illness of body caused by slanderous words cannot be relied on as special damage, because not a consequence that commonly happens under like circumstances. (Allsop v. Allsop, 5 H. & N. 534.) So exclusion from a society of Protestant Dissenters is not special damage. (Roberts v. Roberts, 5 B. & S. 384.) In Chamberlain v. Boyd (11 Q. B. D. 407), it was decided by the Court of Appeal that an allegation that in consequence of the defamatory words a majority of the members of a club were induced to retain a regulation under which the plaintiff had already been rejected, and thereby prevented him from again seeking to be elected, did not disclose sufficient pecuniary damage to support the action; but the

Special damage.

An injunction may be granted.

Defence of justification.

A defen

dant pre

sumed to

have published a

libel mali

ciously.

Defence.

1. The defendant denies that he either printed or published the alleged libel.

2. The defendant denies that the said words in any way referred to the plaintiff.

loss of the hospitality of friends is. (Davis v. Solomon, L. R. 7 Q. B. 112.) Again, if the damage is caused not by the defendant's speech, but by the unauthorised repetition of what he said by another, the defendant is not liable. (Ward v. Weeks, 7 Bing. 211.) So if the person to whom the defendant utters the slander as a consequence of hearing it does an unlawful act, i.e., dismisses the plaintiff from his service without notice, such wrongful act cannot be charged against the defendant as special damage. (Vicars v. Willcocks, 8 East, 1.)

It was held, in several cases prior to the Judicature Act, that the Court of Chancery could not restrain by injunction the publication of a libel (Prudential Insurance Co. v. Knott, 10 Ch. D. 142), but since the Act it has been held that there is now full jurisdiction to issue an injunction. This was first decided in Sarby v. Eastbrook (3 C. P. D. 339). There the Court seemed disposed to limit the right to an injunction to cases where the publications complained of had been found to be a libel by a jury. But the later cases of the Quartz-Hill Consolidated Gold Mining Co. v. Beale, and Hill v. Hart-Davis (20 Ch. D. 501; 21 Ch. D. 798; 51 L. J. Ch. 845; 51 L. J. Ch. 874; 46 L. T. 746; 47 L. T. 82), establish that the Court may restrain a libel before the trial on an interlocutory application, but it was intimated by the Court of Appeal in the former case that the jurisdiction to issue an injunction in a case of alleged libel upon an interlocutory application must be exercised with great caution, and that it would not be generally exercised unless the applicant satisfied the Court that the statements contained in the document complained of were untrue. (See also the cases of the Thorley Cattle Food Co. v. Massam, 14 Ch. D. 864; Thomas v. Williams, 14 Ch. D. 864.)

Defences.-The defences most commonly pleaded in actions for libel are as follows::

1st. That the words written or spoken were true in substance and in fact. This used to be called a plea of justification, and if proved it is a good defence to the action. It is, however, a dangerous plea, and not to be recklessly put upon the record, because, in the first place, the strictest and most precise proof of it is required. (Leyman v. Latimer, 46 L. J. Ex. 765; 3 Ex. Div. 15, 352.) And secondly, if not proved, the fact that it has been pleaded is regarded as some evidence of express malice, and besides very much aggravates the damages.

2nd. Privilege.-Another defence is that the defamatory matter was published without malice, and upon a privileged occasion. One of the essential ingredients in an action for defamation is the malice of the publisher. Therefore if it is averred and proved that he had no malice in fact, the action is at an end; but it must be noticed that the word malice in this connection is not confined to its ordinary meaning of vindictiveness or animosity. A person will be presumed to publish a libel maliciously who publishes it without a sufficient justification. If a person recklessly or carelessly makes a defamatory statement with reference to another, whom it may be he has never seen in his life, and against whom he has no actual ill-will whatever, he is held to have published the slander maliciously, just as much as if he acted on the impulse

3. The said words do not have the meaning which the plaintiff places upon them.

4. The alleged libel formed part of an article printed and

of a heart charged with the direst animosity. In point of fact the malice which a plaintiff relies on to support his action is frequently merely the inference of malice which the law draws from the fact of a publication without justification. This inference, however, can always be rebutted Presumpby the defendant showing that he published the matter complained of tion how bona fide and on a justifiable occasion. When he is in a position to do rebutted. this the pleader must raise the defence specially (Belt v. Lawes, 51 L. J.

Q. B. 539) ; and he is then said to have pleaded privilege.

The effect of a plea of privilege where it is sustained by the evidence, Kinds of is not the same in all cases. There is what is called a qualified privilege privilege. and also an absolute privilege. In the former case-that of most frequent occurrence-the privilege, when proved, only rebuts the inference of malice arising from the fact of the publication of defamatory matter, and casts upon the plaintiff the burden of proving express malice, that is to say, of proving that although the defamation was published on an occasion justifying the defendant if he acted bonâ fide and without illwill, in point of fact he did act from some personal animosity. Thus it will be seen that this plea of privilege ordinarily affords only a very qualified protection to the defendant. It is the function of the judge to decide whether the occasion of the publication was privileged or not. If he holds that it is not proved, then no question of the motive of the defendant need be put to the jury, for the law already sufficiently presumes the maliciousness of the act; but if he holds that the occasion of the publication was privileged, then in the case of qualified privilege now under consideration, the effect of his decision is that the legal inference of malice is rebutted, and the plaintiff must affirmatively prove malice in fact. On the other hand where an absolute privilege is proved, no question of malice can be left to the jury, and the case is at an end so soon as the judge has decided that the privilege arises at all.

Instances

The distinction between qualified and absolute privilege consists in The disthis. In the former case the exigency on which the defamation was tinction published, which is the justification of its publication, has reference to between the protection of merely private interests; in the latter case the exigency absolute has reference to the public service or the administration of justice. Cases and qualibelonging to the latter class are limited in number, but it has been fied prividecided that on grounds of public policy words spoken in Parliament lege. are absolutely privileged (Davison v. Duncan, 7 E. & B. 229, 233); so words spoken by a judge in the course of judicial proceedings (Scott v. Stansfield, L. R. 3 Exch. 220); so the words of counsel in a like case (Munster v. Lamb, 11 Q. B. D. 588 (C. A.)); so the evidence of a witness (Seamen v. Nethercliffe, 1 C. P. D. 540; 2 C. P. D. 53; 45 L. J. 798; 46 L. J. 128); so reports made in the course of his duty by a military officer to his superior officer, and evidence given by him at a courtmartial. (Dawkins v. Rokeby, Lord, L. R. 8 Q. B. 255, 268; 45 L. J. 68.) In all these cases and a few others, though the matter be ever so defamatory and false, the privilege is absolute and no action lies.

of absolute

privilege.

The class of cases where a qualified privilege only arises is much more A definiextensive, though the extent of the protection is not so great. "A com- tion of munication made bond fide upon any subject-matter in which the party qualified] communicating has an interest, or in reference to which he has a duty, privilege. is privileged, if made to a person having a corresponding interest or duty, although it contains defamatory matter which without this privilege would be slanderous and actionable." (Per Lord Campbell in Harrison v. Bush, 5 E. & B. 344.) Thus it has been held that where any repre

Privilege.

Reports of proceedings at public meetings.

A denial

of the publication.

No defamatory meaning.

Accord and satisfac

published by the defendant as a public journalist on the said and the said article was a fair and bonâ fide comment

sentation is made to a public officer, as the Postmaster-General, to obtain redress, a qualified privilege arises. (Woodward v. Lander, 6 C. & P. 548.) So words spoken in confidence and by way of advice, as where a servant's character is given, or where defamatory words are written or spoken bona fide with a view of investigating a fact in which the party is interested. (Hopwood v. Thorn, 8 C. B. 293.) So a substantially fair and correct, though not a verbatim report of judicial proceedings, whether published in a newspaper or a pamphlet (Milissich v. Lloyd, 46 L. J. 404); and it makes no matter though the hearing is before a Court which does not have jurisdiction. (Usill v. Hales, 3 C. P. D. 319; 38 L. T. N. S. 65; Ryalls v. Leader, L. R. 1 Ex. 296.) But a fair report of the proceedings at a meeting of a Board of Guardians where statements reflecting upon the plaintiff were made, is not privileged. (Purcell v. Sowler, 1 C. P. D. 781; 2 C. P. D. 215; 46 L. J. 308.) A communication which if made to the person to whom it was intended to be made would be privileged, is privileged although made to another person by a bona fide mistake. (Tompson v. Dashwood, 52 L. J. 425.)

But with regard to fair and accurate reports of proceedings at public meetings a recent Act (the 44 & 45 Vict. c. 60, s. 2) has conferred a new privilege and protection upon newspaper proprietors. The following is the 2nd section: "Any report published in any newspaper of the proceedings of a public meeting shall be privileged, if such meeting was lawfully convened for a lawful purpose, and open to the public, and if such report was fair and accurate, and published without malice, and if the publication of the matter complained of was for the public benefit; provided always that the protection intended to be afforded by this section shall not be available as a defence in any proceeding if the plaintiff or prosecutor can show that the defendant has refused to insert in the newspaper in which the report containing the matter complained of appeared, a reasonable letter or statement of explanation or contradiction by or on behalf of such plaintiff or prosecutor." This Act also provides that no criminal prosecution shall be commenced against any proprietor, publisher, or editor of a newspaper in respect of a libel in the newspaper without the fiat of the Director of Criminal Prosecutions; but except the 2nd section already quoted, the Act has no reference to civil proceedings by action for libel.

3rd. A third defence is that the defendant did not publish the alleged libel or slander. This is a fact to be determined by the jury. In addition to what has been already said on the subject of publication, the decision in Parkes v. Prescott (L. R. 4 Exch. 169), may be mentioned. There it was held by three judges against two that where a man makes a request to another to publish defamatory matter, of which, for the purpose, he gives him a statement, whether in full or in outline, and the agent publishes the language to some extent as his own, the man making the request is liable to an action as the publisher.

4th. Another defence is that the words used do not really have the defamatory meaning imputed to them. See Mulligan v. Cole (44 L. J. Q. B. 153; L. R. 10 Q. B. 549), where it was laid down an action will not lie in respect of words published if any ordinary reader would not understand them in a defamatory sense, and they cannot be made actionable by being alleged to bear a meaning which the evidence does not support. 5th. Another that they do not apply to the plaintiff.

6th. Accord and satisfaction is a good defence if duly pleaded. In Boosey v. Wood (L. J. 34 Exch. 65), a defence that after the commence

tion.