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Printing a libel is regarded as a publication when possession of the printed matter is delivered with the expectation that it will be read by some third person, provided that result actually follows. He who furnishes the means of convenient circulation, knowing or having reasonable cause to believe that it is to be used for that purpose, if it is in fact so used, is guilty of aiding in the publication and becomes the instrument of the libeler. Trumbull vs. Gibbons, 3 City H. Rec., 97; Rex. vs. Burdett, 4 Barn. & Ald., 95, 143; Rex vs. Clerk, 1 Barnard, 304; Baldwin vs. Elphinstone, 2 W. Bl., 1037; Rex vs. Paine, 5 Mod., 105; 107 Bish. Cr. Law, S. 927; Townsh. Sland. & L. S. S., 104; 115 Hall, Libel, 293; 2 Starkie, Sland. & L., 225; Odgers, Sland. & L., 157; Flood, Libel, 46; Cooke. Defam., 138. It is very clear from these authorities that as the defendants, through their agent, printed the libel and delivered the printed copies to the author, knowing that he intended to submit them to various persons to be read, they became liable as publishers, from the moment that any third person read the libelous matter, provided the words were not privileged."
Publication to members of plaintiff's family is sufficient. Communications to defendant's wife, however, do not constitute a publication.52
Merely to compose or write a libel is not publication.53 If a libel was not intended for publication, and copies were taken without the consent of defendant, there is no publication by defendant.54 But in an action against the manager of a mercantile agency for libel in making a false report of plaintiff's business standing,
62 Miller vs. Johnson, 79 Ill., 58.
52 Sesler vs. Montgomery, 78 Cal.,
63 Prescott vs. Tansey, N. Y. Super. Ct., 12.
25 Cyc., 367; Weir vs. Hass, 6 Ala., 881.
publication of the libel was held to be sufficiently shown by proof that the books in which it was contained were not in the defendant's exclusive possession, but that others in his office had access thereto, and that they and a merchant in the city heard or read the alleged slander.55
There may be a sufficient publication of the libel by sending a letter through the mail,56 but such publication is not complete until the letter is received and read." The publication of a libel contained on a postal card is complete as soon as such postal is mailed,58 and the delivery of a libel to a telegraph company for transmission is a publication.50 There is no publication of a libel by sending it through the mail in a sealed letter addressed to the person libeled, unless the sender of the letter had reason to believe that such letter would be opened and read by another person.61 A writing in an unsealed envelope to the person who was defamed thereby is not a publication of the writing, in the absence of a showing that its contents were communicated to some third person or persons.
The dictation of a libelous matter to a stenographer, by whom it is typewritten and a typewritten copy is made and transmitted to plaintiff, is a publication of such libel.63
It is held in some cases that an action for either slander or libel can be brought in such a case. 64
A want of an intent to
Beardsley vs. Tappem, 2 Fed.
Young vs. Clegg, 93 Ind., 371. 7 McCarbe vs. Atkinson, 77 Miss.,
68 Spence vs. Burt, 18 Lanc. L. Rev. (Pa.), 231.
"Monson vs. Lathrop, 96 Wis.,
INTENT AND MALICE.
injure is no defence to an
386; 71 N. W., 596. 60 Lyle vs. Clason, 1 Car., 581. 61 Rumney vs. Worthley, 186 Mass., 144.
62 Fry vs. McCord, 95 Tenn., 678. 63 Gambrill vs. Schooley, 93 Md., 48; 48 Atl., 70.
action for slander or libel." It is not a legal excuse that defamatory matter was published accidentally or inadvertently," or that the words were spoken in jest, or that the defendant was drunk when he uttered the slander.88
There is a conflict among the decisions as to whether malice is a necessary element in an action for slander or libel. Many cases hold that it is not," and other cases, while holding that malice is necessary, qualify this by stating that there are two kinds of malice, malice in law and malice in fact, and that the law presumes implied malice from the publication of words actionable per se, whether written or oral, and no actionable malice is essential to recovery."
SECTION 77. TRUTH AS A DEFENCE.
In the absence of statutory or constitutional provisions to the contrary, the truth of the matter charged is a good defence to a civil action for either slander or libel," and the fact, under such circumstances that the defendant published the charges maliciously is immaterial. In several of the States at the present time, however, it is provided either by the State Constitution or by statutes, that truth is a good defence to such actions, only when the truth is published with good motives and for justifiable ends."
6 Davis vs. Hamilton, 85 Minn., 64, 92; N. W., 512; Williams vs. McKee, 98 Tenn., 139; 38 S. W., 730.
Littleton vs. Greeley, 13 Abb. Pr.
67 Hatch vs. Patter, 7 Ill., 725.
SECTION 78. WHAT ARE NOT DEFENCES.
The following constitute no defence to an action for slander and libel:
That the defendant believed the charges that were made, to be true.75
That the charges were made under the influence of sudden passion."
That there had been a prior publication of the libel by a third person.""
That there were reports and rumors previously existing.78
The bad character of the plaintiff is not a complete defence; " but may be shown in mitigation of damages.
SECTION 79. PRIVILEGED COMMUNICATIONS.
As a matter of public policy, the law recognizes certain classes of communications as privileged, and not governed by the ordinary laws governing slander and libel. Privileged communications are divided into two classes, (1) absolutely privileged communications, for which no action will lie even when the words are spoken maliciously and with knowledge of their falsity; and (2) qualifiedly privileged communications, where the privilege may be lost by the proof of malice.
SECTION 80. COMMUNICATIONS ABSOLUTELY PRIVI
Absolutely privileged communications are confined
"Hotchkiss vs. Porter, 30 Conn., 414; Prewitt vs. Wilson, 128 Iowa, 198; Powers vs. Cary, 64 Me., 9.
76 Mousler vs. Harding, 33 Ind., 176; Miles vs. Harrington, 8 Kan., 483.
77 Parker vs. McQueen, 8 B. Mon., 16; Clark vs. Munsell, 6 Metc.,
78 Richardson vs. Roberts, 23 Ga., 215; Code vs. Redditt, 15 La., Am., 492.
79 Steen vs. Friend, 20 Ohio Civ. Ct., 459.
80 Hearne vs. De Young, 132 Cal., 357; 64 Pac., 576; Sheahan vs. Callins, 20 Ill., 325; 71 A
to those properly uttered to the course of legislative or judicial proceedings.81
Speeches and all other official utterances of any member of a legislative body are absolutely privileged, but this protection does not apply to words spoken unofficially even in the legislative hall.83 Petitions to a legislative body are privileged when pertinent to the proceedings to which the communication relates.84
All words uttered during the course of a judicial proceeding which properly form part of such proceeding, are absolutely privileged.85 If the court has no jurisdiction over the case before it, the protection is lost.86
In the United States the rule is well settled that attorneys conducting judicial proceedings are privileged from prosecution for libel or slander in respect to words or writings used in the course of such proceedings reflecting injuriously upon others, when such words and writings are material and pertinent to the question involved. Within this limit the protection is complete, irrespective of the motive with which they are used. But the privilege does not extend to matter having no materiality or pertinency to the questions involved in the suit.87
A somewhat different rule has been laid down in Louisiana as follows: "The best rule is, we think, to protect counsel for everything they say which is per