CHAPTER X. report of an inspector of charities, under the "Charitable Trusts Act," contained, among other subjects, a letter complaining of overbearing conduct and inefficiency in one of the officers of the institution, and praying the dismissal of such officer to avert the impending destruction of the institution : the whole report was a long time afterwards published by the defendant in his newspaper, together with a leading article upon the subject. Cockburn, L.C.J., ruled, that prima facie the publication was libellous, but that it was a question for the jury whether under the circumstances it was privileged as a publication and fair comment upon a matter of public interest; and they would have to say-1st, whether it was a matter which it interested the public to know; and 2ndly, did the defendant publish it with a view to afford information upon a matter in which the public were interested, and did he do so in the honest desire to afford that information, or with a sinister motive (t). The manage ment of a Parish Charity. Publications a Religious But the conduct and management of a parish charity, by the minister of the parish, is not a matter of general public interest; nor is it a lawful subject of public comment in a newspaper; and there is no privileged occasion such as will furnish a lawful excuse for the publication of false and injurious matter reflecting on the minister in relation to such charity (u). Nor is it lawful to publish anything defamatory of a private defamatory of society or religious institution. As in the case of the Scorton Community. Nunnery, where the defendant was convicted of publishing a libel with intent to defame and vilify a certain religious order or community called "Scorton Nunnery," and certain persons (naming them), being the Lady Abbess and nuns of the said order, and certain other persons being the chaplains thereof (x). And such societies are themselves liable if they publish defamatory matter of individuals. Any self-constituted body, which sets itself up for the reform of the public, whether in religious, commercial, or political points of view, must be cautious in all their publications and writings concerning private individuals, not to reflect on private character (y). Conduct of a The conduct of a clergyman in cooking and taking his meals (t) Cox v. Feeney, 4 F. & F. 13; ride Allbutt v. Medical Council, supra, p. 107. (u) Gathercole v. Miall, 15 M. & W. 319, 328. (c) Reg. v. Gathercole, 2 Lew. Cr. Ca. 237. () Per Hill, J., in Wilson v. Reed and others, 2 F. & F. 149. in the vestry, and causing books to be sold in the church CHAPTER X. during Divine service, are matters of public interest; and may lawfully be the subject of public comment within the boundaries of fair criticism (z). But to publish of a clergyman of the Church of England that he came to the performance of Divine service in a towering passion, and that his conduct was calculated to make infidels of his congregation, is libellous (a). So also to publish of a clergyman that he had desecrated a portion of the church by converting it into a cooking apartment (b). of Calendarer at the Record Office. The appointment by the Master of the Rolls, of a Roman Appointment Catholic gentleman to make a calendar of certain State papers of State Papers at the Record Office, is a matter of public interest, and may be the subject of fair criticism. The plaintiff, a Roman Catholic, held a temporary appointment in the Public Record Office, as Calendarer of Foreign State Papers; the defendant was the secretary to a society called "The Protestant Alliance." The alleged libels were contained in certain letters published in a newspaper by the defendant, who professed to have written and published them in his capacity as secretary to the above society. The matter complained of in the letters, was that which imputed to the plaintiff, that by reason of his religious views as a Roman Catholic, and his opinions and writings on matters of history, he would be likely to and was capable of interpolating, mutilating, and destroying some of the State papers entrusted to his care as such Calendarer; that whilst the State papers were in the plaintiff's hands they were in jeopardy; that their custody was not safe; that the "Protestant Alliance" entertained grave doubts as to their security; that there was real ground for apprehension of danger to the records; that in a work in the Bodleian library several pages containing an account of Luther and others had been cut away and abstracted by some person of similar religious views to the plaintiff; and that certain State papers had been missing from the Record Office since the plaintiff had been engaged there; and that, as the plaintiff, when about his occupation, sat in a room by himself at the Record Office, with a large fire, the probability was that he accidentally burnt them. At the trial it was (-) Kelly v. Tinling, 35 L. J. Q. B. 231; 1 L. R. Q. B. 699; and see Kelly v. Sherlock, infra. (a) Walker v. Brogden, 19 C. B. (N. S.) 65. (b) Kelly v. Sherlock, 35 L. J. Q. B. 209; 7 B. & S. 480; 1 L. R. Q. B. 686. Bona fide CHAPTER X. proved that no documents of any kind had been lost or missing from the office whilst the plaintiff held his appointment there; and there was no evidence that persons of the plaintiff's opinions had ever destroyed or mutilated books or public documents of any kind. Erle, C.J., directed the jury that a man may publish defamatory matter of another holding any public employment, if it be a matter in which the public are interested; and that "the comments were justified provided the defendant honestly believed that they were fair and just" (c). But on this case being cited in argument in Campbell v. Spottiswoode, the ruling of Erle, C.J., was disapproved, and it was held, that if in commenting on matters of public interest, the writer impute sordid motives or dishonest conduct to the parties concerned, the bonâ fide belief of the writer that the imputations were well founded, affords no defence to an action of libel (d): such bonâ fide belief may mitigate the amount, but it cannot disentitle the plaintiff to damages. Moreover, that "honest belief may be an ingredient to be taken into consideration by the jury in determining whether the publication is a libel; that is, whether it exceeds the limits of a fair and proper comment; but it cannot in itself prevent the matter being libellous" (e). It is the right of all the King's subjects to discuss public matters; but no person can have a right, on that ground, to publish what is defamatory, merely because he believes it to be true. If this were so, a public man might have base motives imputed to him without having an opportunity of righting himself (ƒ). belief of the writer no defence. Where the alleged facts are untrue. Distinction between fair criticism and the assertion of false facts. The rule of law which allows full latitude to a fair and boná fide comment on a matter of public interest, does not mean that a writer may invent facts, and then comment on the facts so invented, in what would be a fair and bona fide manner, on the supposition that the facts are true (g). There is a distinction between fair criticism on the public acts of a public man, and the assertion of false facts, and then commenting on such alleged facts. In the latter case there is no privilege, whether the defendant bonâ fide believed them to be true or not. And so where the plaintiff was CHAPTER X British resident commissioner in Zululand, and the defendants falsely charged him, in their newspaper, with specific acts of misconduct in his office as such commissioner; and then proceeded, on the assumption that the charges were true, to comment on them in defamatory language: it was held, that there was no privilege attaching to such comments: and that the publications themselves, being untrue, were not privileged, even as fair and accurate reports of actual statements made by messengers from King Cetewayo, upon a subject of public importance: nor as a report of statements made to the Bishop of Natal, and by him transmitted to the defendants (h). Criticism cannot be used as a cloak for mere invective, nor for personal imputations not arising out of the subject-matter or not based on fact (i). bad motives, That criticism may reasonably be applied to a public man in a public capacity which might not be applied to a private individual. Every subject has a right to comment on those acts of public men which concern him as a subject of the realm, if he do not make his commentary a cloak for malice and slander; but any imputation of wicked or corrupt motives is unquestionably libellous (k). A line must be drawn between Imputations of criticism upon public conduct and the imputation of motives &c., in public by which that conduct may be supposed to be actuated; one conduct. man has no right to impute to another, whose conduct may be fairly open to ridicule or disapprobation, base, sordid, and wicked motives; unless there is so much ground for the imputation that a jury shall find, not only that he had an honest belief in the truth of his statements, but that bis belief was not without foundation (1): and per Cockburn, L.C.J., "Public affairs could not be conducted by men of honour with a view to the welfare of the country, if we were to sanction attacks upon them, destructive of their honour and character, and made without any foundation. I think the fair position in which the law may be settled is this: that where the public conduct of a public man is open to animadversion, and the writer who is commenting upon it makes imputations on his (h) Davis & Sons (Apps.) v. Shepstone (Resp.), 11 Ap. Cas. 187; 55 L. J. P. C. 51. (i) McQuire v. Western Morning News Co., C.A. (1903), 2 K. B. 109. (k) Parmiter V. Coupland and another, 6 M. & W. 107, per Parke, B. (1) Campbell v. Spottiswoode, 3 B. & S. 776; 32 L. J. Q. B. 185. Comments on conduct of CHAPTER X. motives which arise fairly and legitimately out of his conduct, so that a jury shall say that the criticism was not only honest, but also well founded, an action is not maintainable. But it is not because a public writer fancies that the conduct of a public man is open to the suspicion of dishonesty, that he is therefore justified in assailing his character as dishonest" (m). Fair comments, in a newspaper, on the conduct and appearance of persons attending a public meeting for the purpose of hearing the speeches and political discussions of a candidate for a seat in parliament, have been held to fall within the common law rule of privilege; and that such are not actionable in the absence of express malice, notwithstanding that the persons whose conduct forms the subject of such comments go to the meeting in a private capacity (n). persons attending a political meeting. Reviews and other literary Fair criticism. As to reviews and criticisms of books and other literary productions of the day. The authors of these, in the detection and exposure of misrepresentations of fact, false inferences, vicious principles and bad taste, impose upon themselves the discharge of a difficult and responsible task; and in return are privileged in the exercise of their reasoning powers, and of their talents for wit or satire, so long as they are confined to the legitimate object, the merits or demerits of the work before them; and are not perverted and abused for the purposes of personal defamation, for the gratification of private malice. In these cases, as in other matters of public interest, there is no "privileged occasion" in the sense in which that term is applied to communications that are made in the discharge. of a duty. The question therefore is, not whether the criticism complained of is privileged, but whether it is a libel upon the author. It is only when the writer goes beyond the limits of fair criticism, that his criticism passes into the region of libel at all (o). It is not necessary, in order to give a cause of action, that actual malice on the part of the defendant should be proved. The question whether the matter complained of is, or is not actionable, depends upon whether in the opinion of the jury, it goes beyond the limits of fair criticism (p). Whatever is fair, and can be reasonably said of the works of authors, or of themselves in relation to their works, is not actionable; unless it appears that under the pretext of (m) Campbell v. Spottiswoode, 3 B. & S. 776. (n) Davis v. Duncan, L. R. 9 C. P. 396; 43 L. J. C. P. 185. (0) 20 Q. B. D. 283, per Bowen, L.J. (p) Merivale v. Carson, 20 Q. B. D. 275. |