CHAPTER XII.

PRIVILEGED COMMUNICATIONS.

THERE is imparted by the law, in the public interest, to a certain class of communications, whether oral or written, a protection which is always recognised and respected. Without that security and privilege even private life would be unendurable. The great guiding principle which determines the immunity of such communications, as upheld uniformly and consistently in a long line of cases, is that there is a mutuality of interest in the communication, that it is for the interest of both parties that the information should be imparted, that one has a concern or duty, either public or private, legal or moral, in telling: Harrison v. Bush (5 E. & B. 344); Wright v. Woodgate (2 C. M. & R. 573); and the other a corresponding concern or interest in hearing or reading the imparted information: Somerville v. Hawkins (10 C. B. 583); Lawless v. A. E. Co. (L. R. 4 Q. B. 262). Without that co-ordination of interest no privilege exists: Simmonds v. Dunne (5 Ir. R. C. L. 358); Speill v. Maull (L. R. 4 Ex. 232); Dawkins v. Paulet (L. R. 5 Q. B. 94). It has been held that privileged communications comprehend all statements (Davies v. Snead, L. R. 5 Q. B. 608; Henwood v. Harrison, L. R. C. P. 606), made bona fide in the performance of a duty either towards society (Grant v. Secretary of State, L. R. 2 C. P. 445), or the individual, with a fair and reasonable purpose of protecting the interests of the person making it, or

WHERE CONFIDENTIAL RELATIONS EXIST. 147

to whom it is made, and this strong presumption can only be rebutted by evidence of malice in the defendant, which it lies on the plaintiff to adduce (Somerville v. Hawkins, 10 C. B. 583). When once a confidential relation has sprung up between parties all communications between them are privileged (Beatson v. Skene, 5 H. & N. 838), and it is held they have a right to communicate to each other what they have a common interest in (Shipley v. Todhunter, 7 C. & P. 680). The writer may have some duty to discharge in regard to his correspondent, or have an honest belief that he has such. If so, the communication is presumptively privileged (Cockayne v. Hodgkisson, 5 C. & P. 543). The same applies to trade societies. In an action against an association formed for supplying information concerning ships, it was held, there being no proof of malice or unfair conduct, that it was entitled to publish its bonâ fide opinion although injurious to a particular plaintiff, and a motion to restrain such a publication was refused with costs (Clover v. Royden, 43 L. J. Ch. 165). Where a circular was issued by a member of a friendly society to the other members for the purpose of obtaining a statutory investigation into the solvency of the body, it was held privileged unless untrue (Hall v. Hart Davis, L. R. 21 Ch. D. 798). the case of Hart v. Gumpach (L. R. 4 P. C. 439) for false representations, a new trial was granted on the grounds of misdirection, because the judge did not direct the jury to find whether the representations were wilfully false or true, and did not say that they were privileged, and that there was no evidence that they were false. The Appeal Court held that the representations were privileged and should be so explained to the jury by the judge, and also that if they were honestly made without proof of express malice they were to

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find for the defendant, as on plaintiff lay the burden of proving malice. A bishop's charge was held privileged on the principle that if it was a communication made bona fide upon "any subject in which a party has an interest, or in reference to which he honestly believed he had a duty it is privileged if made to a person having a corresponding duty although it contain criminatory matter (Laughton v. Sodor and Man, L. R. 4 P. C. 495). However honestly a party believes information to be true, if untrue the law implies malice unless the occasion or circumstances justify belief (Darby v. Ouseley, 1 H. & N. 1). An advertisement bona fide giving information even if injurious, but issued by a party interested in publishing the information is protected (Delany v. Jones, 4 Esp. 191; Maloney v. Bartley, 3 Camp. 210). Thus in the Capital and Counties Bank v. Henty (7 App. Cas. 741; L. J. 52 Q. B. 232) it was held that there was no evidence that a circular issued by them was defamatory in a primary or secondary sense, and, even if so, it was issued on a privileged occasion and so protected in the absence of express malice. Where a person writes to a society that another is unfit for membership, the letter was held not actionable in Robinson v. Jermyn (1 Price 11); Barbaud v. Hookham (5 Esp. 109). While a member of a public body may be justified in making charges against a person at a meeting, he is not protected in sending a report of his remarks to a newspaper (Simpson v. Downs, 16 L. T. 391). And a solicitor who sent a fair report of law proceedings to a paper was not privileged, as it was held he did so having malice (Stevens v. Sampson, 5 Ex. D. 53). Whether a report is fair or not is for the jury (Turner v. Sullivan, 6 L. T. 130), and the privilege of newspaper reports extends to law books (Blake v. Stevens, 4 F. & F.) if

THE PRINCIPAL CASES OF PRIVILEGE. 149

reasonable diligence and care for accuracy were exercised, and it is a good defence that it is a fair report (Hoare v. Silverlock, 9 C. B. 20): but it must be a report with no comments (Andrews v. Chapman, 3 C. & K. 286); nor a highly coloured one mixed up with personal observations (Stiles v. Nokes, 7 East, 493; Carr v. Jones, 3 Smith, 391) and there must be no libellous heading (Lewis v. Clement, 3 B. & A. 702), nor must a communication not made in Court be introduced into it (Lynam v. Going, 6 Ir. L. R. 259). A communication which ordinarily may be privileged (Williamson v. Freer, L. R. 9 C. P. 393), if made with too great a parade of publicity, is libellous as if sent by post card (Robinson v. Jones, Ir. L. R. 4 Ch. 391) or by a telegram (Williamson v. Freer, L. R. 9 C. P. 392). If by mistake a libel is put into a wrong envelope, it is held privileged in the absence of malice (Thompson v. Dashwood, 11 Q. B. D. 43). The report of proceedings must be confined to such, and disparaging remarks confined to what was uttered in Court (Delegal v. Highley, 5 Scott, 154). The remarks of a county court judge, however irrelevant, false, and malicious, are protected (Scott v. Stansfeld, L. R. 3 Ex. 220); of a coroner when acting as such (Homer v. Churton, 2 B. & S. 475), or a witness under examination (Astley v. Young, 2 Burr. 807); by counsel or solicitor when conducting a case (Hodgson v. Scarlett, 1 B. & A. 232); or the report of an auditor (Lawless v. Anglo-Egyptian, &c. Co., 4 L. R. Q. B. 262). Where, however, a person, not content with stating facts, puts his own gloss upon them, it was held evidence of malice (Cooke v. Wildes, 5 E. & B. 328). In Lawless v. Anglo-Egyptian, &c. Co., as above cited, it was also held, as it was the duty of directors to send a report to shareholders, and the interest of shareholders to get it,

the communication as between them was privileged; and in an American case (Philadelphia & Baltimore Railroad Co. v Quigley, 21 Howard Rep. S. Court, U. S. 202), it was held to be within the course of business and employment of a Board of Directors to look after officers and report to shareholders, and that reports thereon were protected. It must be added that meetings of public companies are not protected by the Acts of 1881 or 1888, and that reports of defamatory statements made thereat do not enjoy the protection which law and other privileged reports do.

The principle regulating privilege is this, that a defamatory statement was made which cannot be justified because of its truth, but is allowed on the grounds that it was made on a privileged occasion. Coleridge, C.J. clearly explains the matter in his judgment in Eliott v. Evans (Q. B. D. 3 T. L. R. 639): "If the occasion is not privileged the defendant must prove the truth of the statements, but if it was a privileged occasion the law is that it is for the plaintiff to show that the protection or privilege which the law allows in certain relations has been exceeded or abused by the person who claims the benefit of it; if that proof is not given, and there is no evidence that the privilege has been exceeded or abused, the defendant is entitled to the benefit of it. It would be useless-legally, morally, or socially-to maintain the name of privilege if, when the occasion is clearly privileged and protected, and the statements have been made bona fide, they are, nevertheless, to be held actionable merely because they were in fact untrue, and that is a question to be submitted to the jury, and such, in my view, is not the law. In the present case the occasion was clearly privileged (reporting a meeting) and the plaintiff could get rid of the