Page images

goods upon credit. The court held that
no action would lie, as an unauthorised
communication cannot be considered the
necessary consequence of the original utter-
ing of the words, and the repetition was
the voluntary act of a free agent.(c) 1

2, It imputes an indictable offence.
[note. But if it appear f rom the surroundiny

facts that the defendant did not intend to
impute an actual crime, the slander will be
mere "vulgar abuse," and no action will lie.
For example. Where the defendant in an
action for slander said, "Thou art a thief,
for thou hast taken my beasts in execution." (d) I

3. It imputes that the plaintiff is afflicted with a
contagious disorder (as the leprosy).
[For it causes him to be shunned by so-

It is spoken with reference to a man's trado or

Illustration Foulger was a gamekeeper, and it was his duty as such, and he had special instructions, not to trap foxes. Newcomb said of him, "It is no wonder we did not kill any foxes in llidler's Wood, because Foulger trapped three foxes." The court held that the action would lie.(/) II. Libel (libellum, a writing) is written, printed, or symbolised slander.

§ All such publications, which are injurious to the private character or credit of another; or which hold him up to

[ocr errors]

public hatred, ridicule, or contempt; or which tend to
make him shunned or feared, are actionable.(a)
[note. § Where anything defamatory is written or
printed, a more serious wrong is inflicted by
reason of the wider and more lasting character
of the publication, and also of the deliberation
of the act, by which greater malice is indicated.
§ Libel is a crime, and is punishable as such;
but, except in certain cases (see post, p. 262),
it is otherwise with slander.
§ The original publisher of a slander, not action-
able except upon proof of special damage, is
only liable for such damage—

(i) If it is occasioned by his direct utter


(ii) If he has authorised the repetition.

(iii) If it was the duty of the person who heard it to repeat it.

And not if it was only caused by the unauthorised repetition of the slander by another. For in such cases the damage is too remote.(J) § But everyone who publishes, or republishes a libel, is responsible for his wrongful act.(c) J

Of Defences ru Actions For Slander And Libel.

1. Justification. If the defendant can show that what he has said or written of the plaintiff is true in substance and in fact, the plaintiff cannot recover.

(a) It has been held that to write of a man " that he is an itchy old toad " is actionable: Villers v. Monsley, 2 Wils. 403.

(6) Wand v. Weeks, 7 Bing. 211 : see judgment of Kelly, C.B., in Biding v. Smith, 1 Ex. D. at p. 94.

(c) Cook v. Ward, 6 Bing. 115; De Crespigny v. Wellesley, 5 Bing. 403.

II. Privileged Communications.

§ An action for defamation is founded on "malice in Zaw." Malice in law is

1. A wrongful act.

2. Done intentionally.

3. Without just cause or excuse.(d)

§ Malice in law is implied from the fact of the publication, and the element of spite, or actual malice, is not necessary to sustain an action, (d)

§ But The Inference Of The Existence Of Legal Malice May Be Rebutted by evidence, showing that the occasion on which the slander or libel was piiblished was a privileged one.

[In other words, showing that one of the constituents of "malice in law," viz.: that the wrongful act was done without just cause or excuse, was wanting.] § The plaintiff, however, may still show, that, although the occasion was a privileged one, the defendant was really actuated by "actual malice" or spite; in which case the defence of privilege is gone. § hor the existence of " actual malice" destroys the privilege.

Illustration. Kynnersley dismissed his gardener, Fryer; and wrote to Eyles, the Superintendent of the Royal Horticultural Society, by whom Fryer had been originally recommended to him, stating his reasons for parting with him; and also describing a "scene" with Fryer in the garden, when he said Fryer came towards him with an open clasp-knife, "a perfect raving madman," and "with his eyes starting out of their sockets with rage;" and gave other particulars in exaggerated language. In an action by Fryer, the court held, that though the occasion might have been privileged, the letter

(fi) Bromage v. Prosser, 4 B. & C. 255.

contained expressions which went beyond what was justifiable; and in itself showed the existence of actual malice, which took away the privilege. (a) § In order, therefore, that an action for defamation may lie, if "legal malice" is rebutted, "actual malice" must be proved. § A Privileged Occasion is where the defamatory matter has been—

I. Published bond fide, and under the belief that it was true.

[note. It is not necessary that there should be

reasonable grounds for such belief.(&) (ij In the discharge of some public or private duty, legal, moral, or social, where the interest of the public, or of the person communicated with, are concerned. (c) («•) Illustration. Mrs. Affleck had a servant named Child. Child left her service, and got another place. Her new mistress wrote, after she had engaged Child, to Mrs. Affleck for Child's character. Mrs. Affleck wrote saying that Child had, while in her service, conducted herself disgracefully, and was, she believed, then a prostitute at Bury. She also made a similar communication to the person who had

(a) Fryer v. Kynnersley, 33 L. J. C. P. 96.

(6 Clark v. Molyneux, 3 Q. B. D. 237, where Beamwell, L. J., observes that there may be cases where the privilege will protect a person who honestly makes a defamatory statement, even where he does not believe it to be true. It is suggested that such an occasion might be where there was a duty to make the communication at all events, as where a bishop might bond fide say to a rector in his diocese that he had heard certain grave charges against the rector's curate which he was bound to communicate to him, but whether they were true or not he was unable to say.

(c) See Harrison v. Bush, 25 L. J. Q. B. 25 ; 5 E. & B. 344; Whiteley v. Adams, 33 L. J. C. P. 94; Walter v. Loch, 7 Q. B. D. 619.

originally recommended Child to her. In consequence of the letter, Child lost her place; and sued Mr. and Mrs. Affleck for libel in making both these communications. The court held that the occasions were both privileged, (d) (/*.) Illustration. Hawkins was paying his addresses to the widow of Dr. Taft. Her soD-in-law, Mr. Todd, wrote her a letter warning her against Hawkins, and making imputations against his character. In an action by Hawkins against Todd, it was held that the occasion was privileged.(e)

(ii) In the conduct of the utterer's own affairs,

where his own interests are concerned. illustration. The firm of Spill & Briggs was being wound up by Maule, a creditor of the firm. During the course of this business Maule wrote a letter to Messrs. Collin & Co., also creditors of the firm, in which, alluding to the partnership assets, he described Spill's conduct as "disgraceful and dishonest." In an action by Spill against Maule the court held the occasion privileged.(/)

(iii) Upon the request of the person of whom it

is spoken.

Illustration. Hopwood was in partnership with Pinhorn at Southampton, as a linendraper. The partnership was dissolved;

(d) Child v. Affleck, 9 B. & C. 403: see Allbutt v. Council of Medical Education, 23 Q. B. D. 400 (C. A.).

(e) Hawkins v. Todd, 8 C. & P. 88 ; and see Coxliead v. Riclmrds, 2 C. B. 605. (/) Spill v. Maule, L. K. 4 Ex. 232.

« PreviousContinue »