if anything seditious, blasphemous, or obscene be uttered there, that must be omitted from the report. Similarly, if anything defamatory be said of a private citizen, not a public man, the passage must be excised from the report before publication. So, too, if an unfair attack be made on a public man. And the editor must decide for himself, before going to press, whether any such attack is fair or unfair. This, no doubt, imposes on the editor an arduous task, and subjects the proprietor of the paper to serious risk. So Mr. Sowler and his friends again approached the legislature. On February 10th, 1888, Sir Algernon Borthwick, the Chairman of the Newspaper Press Fund, (now Lord Glenesk,) brought in a Bill in the House of Commons, which was backed by Sir Albert Rollit, Mr. Lawson, Mr. Jennings, Dr. Cameron, Mr. John Morley, and Mr. E. Dwyer W. Gray. This Bill was very thoroughly discussed in both Houses of Parliament, and also in the columns of the Times, and very important amendments and additions were made; till in the end it became a Bill materially different from that introduced by its promoters; still it is a valuable and workable measure. In the form in which it ultimately became law, it will be found in the next Appendix (pp. 790-793). It will, I think, be convenient to set out here the Bill as originally introduced : A BILL TO AMEND THE LAW OF LIBEL. Whereas it is expedient to amend the law of libel : Be it therefore enacted by the Queen's most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present parliament assembled, and by the authority of the same, as follows: 1. In the construction of this Act the word "newspaper" shall have the same meaning as in the Newspaper Libel and Registration Act, 1881. 2. Section two of the Newspaper Libel and Registration Act, 1881, is hereby repealed. 3. A fair and accurate report published in any newspaper of proceedings of and in any Court exercising judicial authority shall be absolutely privileged. 4. A fair and accurate report published in any newspaper of the proceedings of a public meeting, or of any meeting of a vestry, town council, school board, board of guardians, board or local authority formed or constituted under the provisions of the Public Health Act, 1875, or of any Act amending the same, or of any committee appointed by any of the above-mentioned bodies, or of any meeting of any commissioners authorised to act by letters patent, Act of Parliament, warrant under the Royal Sign Manual, or other lawful warrant or authority, select committees of either House of Parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes, or of any other duly and legally constituted body or persons acting in a public capacity and for public purposes, and the publication by any newspaper of any notice or report issued for the information of the public by or by order of any Government office or department, officer of state, commissioner of police or chief constable, or by any of the bodies or authorities herein before mentioned, or of any other matter of public interest which is a fair subject of newspaper report, shall be privileged, unless it shall be proved by the plaintiff or prosecutor, as the case may be, that such report or publication was published or made with actual malice. Provided always, that the protection intended to be afforded by this section shall not be available as a defence in any proceedings if the plaintiff or prosecutor can show that the defendant has been requested by such plaintiff or prosecutor, or by some other person acting on his behalf or by his authority, to insert in the newspaper in which the report or other publication complained. of appeared a reasonable letter or statement by way of contradiction or explanation of such report or other publication, and has refused or neglected to insert the same: Provided, further, that nothing in this section contained shall be deemed or construed to limit or abridge any privilege now by law existing. 5. In an action for a libel contained in any newspaper it shall be lawful for the defendant to raise by his defence a plea under the second section of the Act of the session of the sixth and seventh years of the reign of her present Majesty, chapter ninety-six, intituled "An Act to amend the Law respecting Defamatory Words and Libel," without making any payment into Court, and where such a plea has been raised (either with or without payment into Court), if it shall appear at the trial that such libel was published without actual malice and without gross negligence, and that the defendant has inserted an apology, as by the said Act provided, the plaintiff shall not be entitled to recover any damages except such special damages as he can prove that he has sustained by the publication of such libel. Section two of the Act of the session of the eighth and ninth years of the reign of her present Majesty, chapter seventy-five, intituled "An Act to amend an Act passed in the Session of Parliament held in the sixth and seventh years of the reign of her present Majesty, intituled 'An Act to amend the Laws respecting Defamatory Words and Libel,'" is hereby repealed. 6. At the trial of an action for a libel contained in any newspaper, the defendant shall be at liberty to give in evidence, in mitigation of damages, that the plaintiff has already recovered (or has brought actions for) damages or has received or agreed to receive compensation in respect of a libel or libels to the same purport or effect as the libel for which such action has been brought. 7. In any action for libel, if the defendant can show by affidavit or other evidence to the satisfaction of a judge of the division of the High Court of Justice in which such action is brought, that the plaintiff has been adjudicated bankrupt, or has no visible means of paying the costs of the defendant should not a verdict be found for the plaintiff, the judge, unless just cause to the contrary be shown, shall make an order that the plaintiff shall, within a time therein mentioned, give full security for the defendant's costs to the satisfaction of one of the masters of such Court, and that until such security be given all proceedings in the action shall be stayed. 8. No person shall be found guilty upon the trial of any indictment or information for the publication of a libel unless it be proved by affirmative evidence on behalf of the prosecution that such person was party or privy to the publication of the libel charged in such indictment or information. 9. Every person charged with the offence of libel before any Court of criminal jurisdiction, and the husband or wife of the person so charged, shall be competent, but not compellable, witnesses on every hearing at every stage of such charge. 10. This Act shall not apply to Scotland. 11. This Act may be cited as "The Law of Libel Amendment Act, 1888." If this Bill be compared with the Act (post, p. 790), it will be seen at once that three clauses contained in it never became law. Clause 5 was thrown out on the third reading in the House of Commons, and Lord Campbell's Act thus remains law. It could hardly be supposed that the House would consent in any case to limit the damages which a jury might award to such special damage as the plaintiff could prove. It is very difficult to prove special damage, even where it is clear that the plaintiff's reputation has been seriously impaired. A married woman, as a rule, cannot suffer any special damage, unless she is employed in some situation. A gentleman of independent means can very rarely sustain any special damage in the legal meaning of that term. Hence the clause was rightly rejected. Clause 7, enabling the defendant in certain cases to obtain security for costs from a plaintiff, was thrown out in Committee; it introduced a new and dangerous precedent; and the necessity of the case was already met by section 10 of the County Courts Act of 1867, which has now been re-enacted by section 66 of the County Courts Act of 1888. Clause 8 passed the House of Commons, after considerable amendment, and reached the House of Lords in the following form: "No person shall be found guilty upon the trial of any indictment or information for the publication of a libel, if it be proved on behalf of the defence that such person was not party or privy to the publication of the libel charged in such indictment or information, and that the said publication did not arise from want of due care or caution on his part." In Committee in the House of Lords this. clause was withdrawn by Lord Monkswell, who had charge of the Bill, in deference to the late Lord Coleridge, who pointed out that the section, as amended, closely resembled section 7 of Lord Campbell's Act, and that it was undesirable to have two provisions to the same effect expressed in different words in two different statutes. On the other hand, the Act contains three sections which were not in the original Bill. The present section 5, which allows actions against different defendants for the same libel to be consolidated, was inserted in the House of Commons. There had recently been two cases in which an error made by one newspaper was copied into many others, and the plaintiff sued each paper separately and recovered large amounts; thus making a living out of the injury to his reputation. (See Tucker v. Lawson, (1886) 2 Times L. R. 593; and Colledge v. Pike, (1886) 56 L. T. 124; 3 Times L. R. 126.) In the latter case, the Court held that as the publications were distinct, and the liabilities of the various defendants different, the actions could not be consolidated. (See ante, p. 576.) Hence the necessity for this section. Section 7 deals with prosecutions for obscene libels. It dispenses with the necessity for setting out the obscene passages rerbatim in the indictment. This section was introduced and carried by Mr. Samuel Smith on the third reading of the Bill in the House of Commons. It overrules the decision in Bradlaugh and Besant v. The Queen, (1878) 3 Q. B. D. 607; 48 L. J. M. C. 5; 26 W. R. 410; 38 L. T. 118; 14 Cox, C. C. 68. It is unfortunate that this beneficial provision was not extended so as to apply to blasphemous as well as to obscene libels. Section 8, which substitutes the order of a judge at chambers for the fiat of the Public Prosecutor required by section 3 of the Act of 1881, was introduced in the House of Lords by the late Lord Coleridge, L.C.J. It is found in practice more difficult to obtain an order from a judge at chambers under this section than it was in former days to obtain the fiat of the Public Prosecutor; a result which Lord Coleridge probably contemplated. There is, however, one curious result from this provision. If criminal proceedings be taken for a libel contained in a newspaper, the case must now be gone into four times-once, by the judge at chambers; next, before the magistrate, where evidence on both sides will probably be taken (see sections 4 and 6 of the Act of 1881); then before the grand jury; and, lastly, in open Court, before the petty jury. Would it not have been simpler and better to have abolished the remedy by indictment altogether, leaving the person defamed his civil remedy only, except in those cases where the libel is of so serious a character as to call for a criminal information ? The Bill, as I have already said, was carefully and thoroughly discussed in both Houses. One of the earliest amendments made in the Commons was the omission of the word "absolutely " in section 3. Reports of judicial proceedings are privileged at common law; but such privilege is destroyed by proof of actual malice. If, for instance, one of the parties to the action or his solicitor sent such report to the papers, the party or his solicitor (not the newspaper) would be liable to pay damages, if the jury thought this was done maliciously. (Stevens v. Sampson, (1879) 5 Ex. D. 53.) So again, if a newspaper published every day during an election a fair and accurate report of a trial that had taken place, say ten years ago, in which one of the candidates cut a disgraceful figure, here, too, it would be open to the jury to find malice, and in that case the proprietor would have to pay damages. But it is very seldom that the proprietor or editor of any newspaper acts maliciously, and when he does, it is right that he should pay damages to the person whom he has defamed. Hence there was no sufficient reason for creating any absolute privilege. But the battle raged chiefly over section 4, which relates to reports of public meetings. In the House of Commons some of the safeguards formerly provided by the Act of 1881 were again inserted in this clause, e.g., that the meeting must be "lawfully convened and held for a lawful purpose." How the editor reading the report of a meeting is to know who convened it and whether they convened it lawfully, I do not know! Again the Committee of the Commons added a proviso that nothing in the section should "protect the publication of any matter not of public interest and the publication of which is not for the public benefit, thus restoring the law as laid down in the cases of Purcell v. Sowler and Pankhurst v. Sowler, cited above. But the Lords abridged the proviso, omitting the words "lawfully convened," and introduced a new phrase into the law of libel," any matter of public concern," instead of the time-honoured phrase, “a matter of public interest." When the Bill returned to the Commons, Mr. Kelly succeeded in adding the words, "and the publication of which is not for the public benefit," after the words "of public concern." A point of law has been raised as to the exact meaning of this proviso: some lawyers contending that the "and" must be taken to mean "or." But the section as it stands is clear and sensible, and affords a satisfactory solution of the difficulty which it was framed to meet. It is unquestionably an extension of the privileges afforded by the former Act. It removes the doubts attendant on the phrase "a public meeting and open to the public;" it embraces the publication of police notices and other official announcements; but it still leaves it the duty of the editor to edit all reports of public meetings and excise all matter that is "not of public concern and the publication of which is not for the public benefit." And he must remember that while there are many matters which concern the public in which they take no interest, they take great interest in many other matters with which they have no concern. O.L.S. 3 D |