THE LAW OF SLANDER. CHAPTER I. SLANDER; WHAT IS, AND WHEN ACTIONABLE. Slander: what it is. Conflict of early decisions. Present rule of construction. Slander when generally actionable. When actionable without proof of for. SLANDER, or oral Defamation, is an injury, for which, by CHAPTER I. the law of England, an action for damages will lie; but an Slander, what Indictment will not lie for mere words not reduced into is, and remedy writing (a), unless they be seditious, blasphemous, grossly immoral, or addressed to a Magistrate whilst in the execution of the duties of his office, or with reference to those duties; or uttered as a Challenge to fight a duel, or with an intention to provoke another to send a Challenge (V). Libel or written (c) Defamation is, in the eyes of the law, an injury of a greater and more aggravating nature than Slander; by reason of the more durable publicity thus given to the defamatory matter, and the deliberation of the defamer in reducing the slander to writing. A spoken insult is heard only by those who are present; whereas that which is written may pass into many hands. "Verba volant, litera scripta manet." Two remedies are therefore given in Libel: one by Criminal procedure against the Libeller, the other a Civil remedy by action at law. There is, however, no branch of the English law in which Conflict of the early decisions of the Courts exhibit so many inconsis- early decisions. tencies as in the cases decided on the law of slander. The evil appears, chiefly, to have arisen from the studious efforts made CHAPTER I. to strain the meaning (d) of defamatory expressions into some sense or interpretation never intended by the utterer; but which, if intended, would be capable of a harmless and inoffensive construction. Present rule of construction. Slander when generally actionable. The imputa tion must be false. Later decisions have trimmed and adjusted the law on this subject; and words are now to be taken in their natural sense, and in such as the hearers were given by the utterer to understand them. Id certum est, quod certum reddi potest; sed id magis certum est quod de semet ipso est certum (e). And the words must be in themselves applicable to the individual Plaintiff. In the early part of the reign of Queen Anne, Holt, C.J., observed, that whenever the words tended to take away a man's reputation he would encourage actions for them; because so doing would much contribute to the preservation of the peace (ƒ). And Fortescue, J., observed on this ruling in a subsequent case, that it was also Hale's and Twisden's, JJ., rule; and he thought it a very good one (g). In a more modern case Lord Ellenborough, C.J., held, that in order to support an be action of Slander, it was necessary that there 1. Malice in the Defendant. 2. An injury to the character of the Plaintiff and 3. That the words should be untrue ). But in ordinary actions of Slander, express malice need not proved; it is to be implied from the slander itself. So with regard to the injury or damage, such will be implied in some cases; in others, to be noticed hereafter, the action is not maintainable without proof of special damage. It is essential to the claim to 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 of slander. The law always presumes in favour of innocence, and therefore does not require a plaintiff to prove the falsity of the (d) Stanhope v. Blith, 4 Co. 15. (e) 9 Co. 47. (f) Baker v. Pierce, 6 Mod. 23. (g) Button v. Heyward, 8 Mod. 24. (h) Maitland v. Goldney, 2 East 426. alleged calumny; on the contrary, it imposes the burden of CHAPTER I. proving the affirmative on the defendant: the truth of the supposed slander is in effect a ground of justification, which must be substantiated by the defendant: consequently the decisions on this point will be more properly considered in subsequent pages in remarking upon those justifications which are recognized by the law. The consequence of the slander must be to occasion some injury or loss to the plaintiff, either in law or in fact. As, in many instances, the immediate tendency of malicious. slander is to produce great and irreparable mischief to the party whose character is assailed, though none can be proved, or at least proved in time, so as to save the sufferer from great loss; or even absolute ruin; the law, in the particular instances stated below, on grounds of the wisest policy, considers the very publication of particular slander to be injurious, and to confer a substantive right of action, though no special loss or damage can be proved. In the first place, then, in what cases does the communication amount to a damage in law? Or, in other words, when is the slander actionable without proof of any special damage? The general rule is, that where the natural consequence of the words is a damage; as if they import a charge of having been guilty of a crime or a misdemeanour, or if they are defamatory of a person in his or her office, profession, trade, or calling, they are in themselves actionable: in other cases the party who brings an action for words must show the damage which he has received from them. The ground of an action for words, in the absence of specific damage, is the immediate tendency of the words themselves to produce damage to the person of whom they are spoken; in which case presumption supplies the place of actual proof. It appears then, that an action of Slander may be main- Slander, when tained without proof of special damage, in the following without special cases: 1. If an indictable offence be imputed to the Plaintiff. (i) 54 & 55 Vic. c. 51 (The Slander of Women Act, 1891). actionable damage. CHAPTER I. 4. If the words tend to the disherison of the Plaintiff: (but if they merely affect his present Title or inheritance special damage must be proved). 5. If the Slander be propagated by printing, writing, picture or caricature (termed libel). It will be considered under each of these divisions, by what rules the extent of the action is limited, and the reasons upon which they are founded. CHAPTER II. Grounds of action generally. THE immediate and obvious consequences resulting from a charge of an indictable offence are, the party's degradation in society, and his exposure to criminal liability. In the one case the presumption is, that he has lost the benefit of intercourse with society; in the other that he is placed in jeopardy; and that the suspicion excited by the report, may produce a temporary deprivation of his liberty until his innocence can be made manifest (a). There are reported cases which show, that criminal liability is not always the peculiar and exclusive ground of action, and in which a remedy has been given on account of imputations which, if believed and even proved, could not have subjected (a) The being of bad fame, or keeping company with persons of scandalous reputation, was formerly a reason for commitment. Hawk. b. 2, c. 12, pp. 8-11. the plaintiff to any future penalty:-For instance, the defen- CHAPTER II dant said, "Robert Carpenter was in Winchester Gaol, and tried for his life, and would have been hanged had it not been for Leggatt, for breaking open the granary of Farmer A. and stealing his bacon " (b). In Gainford v. Tuke the words. were "Thou wast in Launceston Gaol for coining!" The Words imputplaintiff replied, "If I was there, I answered it well." "Yea," ing guilt, notwithstanding said the defendant, "you were burnt in the hand for it!" (c). trial and acquittal. In the above cases of Carpenter v. Tarrant and Gainford v. Tuke, (the former of which was cited by Lord Ellenborough, C.J., in giving judgment in a subsequent case (d),) the words import that the plaintiff had been acquitted in the one case and punished in the other; neither imputation, therefore, though believed, could have exposed either of the plaintiffs to future liability. In these and similar instances it is likewise to be observed, that though motions were made in arrest of judgment, the objection relied upon was, that the words contained no direct charge of felony; and it was not insisted upon as essential to the action, that the words must impute an offence which may expose the party to a future prosecution, though there was room in each of these cases for making the objection, had it been thought available. And in the case of Boston v. Tatham (e), the court expressed an opinion, that, even allowing Words imputthat the words fixed the offence to a period, since which the ing crime for which punishliability to punishment must have been discharged by a general ment suffered, pardon, yet that the words were actionable, since the scandal or pardon of the offence remained. And although in these cases the principal ground upon which words of this description are held to be actionable, seems to have been abandoned, yet the good sense of the decisions is obvious; for were it otherwise, the slanderer might always secure impunity by cautiously asserting that the party slandered had already suffered the punishment appertaining to the imputed offence (ƒ). granted. returned Where the action was for saying of the plaintiff (a trades- Imputation of man), "He is a returned convict": the special damage alleged being "a was, the loss of a customer to whom the words were spoken; convict." but the proof of special damage failed, and it was thereupon contended for the defendant that the words were not actionable (b) Carpenter v. Tarrant, Rep. Temp. Hard. 339; see also Cuddington v. Wilkins, Hob. 81. (c) Cro. Jac. 536. (d) Roberts v. Camden, 9 East, 93. (e) Cro. Jac. 623. (f) By the Roman law, where the defamatory matter related to a crime which had been either pardoned or satisfied by punishment, the truth of the charge was no defence; the defamation, though true, was punished. |