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CHAPTER VI.

PUBLICATION.

PUBLICATION is the communication of the defamatory words to some third person or persons. It is essential to the plaintiff's case that the defendant's words should be expressed; the law permits us to think as badly as we please of our neighbours so long as we keep our uncharitable thoughts to ourselves. Merely composing a libel is not actionable unless it be published. And it is no publication when the words are only communicated to the person defamed; for that cannot injure his reputation. A man's reputation is the estimate in which others hold him; not the good opinion which he has of himself. And the communication, whether it be in words, or by signs, gestures, or caricature, must be intelligible to such third person. If the words used be in the vernacular of the place of publication, it will be presumed that such third person understood them, until the contrary be proved. And it will be presumed that he understood them in the sense which such words properly bear in their ordinary signification, unless some reason appear for assigning them a different meaning.

The onus lies on the plaintiff to prove publication; and such publication must of course be prior to the date of the

writ.

Illustrations.

To shout defamatory words on a desert moor where no one can hear you is not a publication; but if anyone chances to hear you, it is a publication, although you thought no one was by.

To utter defamatory words in a foreign language is not a publication, if no one present understands their meaning; but if defamatory words be written in a foreign language, there will be a publication as soon as ever the writing comes into the hands of anyone who does understand that language, or who gets them explained or translated to him.

If defamatory words be spoken in English when the only person present besides the plaintiff is a German who does not understand English, this is no publication.

Hurtert v. Weines, 27 Iowa, 134.

Sending a letter through the post to the plaintiff, properly addressed to him, and fastened in the usual way, is no publication; and the defendant is not answerable for anything the plaintiff may choose to do with the letter after it has once safely reached his hands.

Barrow v. Lewellin, Hob. 62.

In an American case the plaintiff, after so receiving a libellous letter from the defendant, sent for a friend of his and also for the defendant; he then repeated the contents of the letter in their presence, and asked the defendant if he wrote that letter; the defendant, in the presence of the plaintiff's friend, admitted that he had written it. Held, no publication by the defendant to the plaintiff's friend.

Fonville v. Nease, Dudley, S. C. 303.

But it is otherwise if a message be sent to the plaintiff by telegraph; the contents of the telegram are necessarily communicated to all the clerks through whose hands it passes. So with a postcard.

Whitfield and others v. S. E. Ry. Co., E. B. & E. 115; 27 L. J. Q. B. 229; 4 Jur. N. S. 688.

Williamson v. Freer, L. R. 9 C. P. 393; 43 L. J. C. P. 161; 22 W. R. 878; 30 L. T. 332.

Robinson v. Jones, 4 L. R. Ir. 391.

So where the defendant knew that the plaintiff's letters were always opened by his clerk in the morning, and yet sent a libellous letter addressed to the plaintiff, which was opened and read by the plaintiff's clerk lawfully and in the usual course of business, held, a publication by the defendant to the plaintiff's clerk.

Delacroix v. Thevenot, 2 Stark. 63.

So where the defendant, before posting the letter to the plaintiff, had it copied. Held, a publication by the defendant to his own clerk who copied it.

Keene v. Ruff, 1 Clarke (Iowa), 482.

So where the defendant wrote a letter to the plaintiff himself, but read it to a friend before posting it.

Snyder v. Andrews, 6 Barbour (New York), 43.

McCombs v. Tuttle, 5 Blackford (Indiana), 431.

The delivery of a newspaper containing a libel to the proper officer of the Commissioners of Stamps and Taxes for revenue purposes was a sufficient publication of the libel; although the proprietor of the paper was required by law so to deliver it.

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R. v. Amphlit, 4 B. & C. 35; 6 D. & R. 125.

So the delivery of a manuscript to be printed is a sufficient publication; even

though the author repent and suppress all the printed copies. For the compositor must hear it read.

Baldwin v. Elphinston, 2 W. Bl. 1037.

[This may be considered a somewhat harsh decision, as the compositor does not attend to the substance of the manuscript, but sets it up in type mechanically; but it has recently been acted on in America.

Trumbull v. Gibbons, 3 City Hall Recorder, 97.

And see Watts v. Fraser and another, 7 Ad. & E. 223; 6 L. J. K. B. 226; 7 C. & P. 369; 1 M. & Rob. 449; 2 N. & P. 157; 1 Jur. 671; W. W. & D. 451.

At all events where it is proper that the words should be printed, the publication, if it be one, to the printer and his men will not destroy any privilege which might otherwise exist.

Lawless v. The Anglo-Egyptian Cotton and Oil Co., L. R. 4 Q. B. 262; 10 B. & S. 226; 38 L. J. Q. B. 129; 17 W. R. 498.

Lake V.

King, 1 Lev. 241; 1 Saund. 131; Sid. 414; 1 Mod. 58.] But merely to be in possession of a copy of a libel is no crime, unless some publication thereof ensue.

R. v. Beere, Carth. 409; 12 Mod. 219; Holt, 422; 2 Salk. 417, 646; 1 Ld. Raym. 414.

And see 11 Hargrave's St. Tr. 322, sub Entick v. Carrington.

Although husband and wife are generally to be considered one person in actions of tort as well as of contract (Phillips v. Barnet, 1 Q. B. D. 436), still the plaintiff's wife is sufficiently a third person to make a communication to her of words defamatory of her husband a publication in law. (Wenman v. Ash, 13 C. B. 836; 22 L. J. C. P. 190; 1 C. L. R. 592; 17 Jurist, 579; Jones v. Williams, 1 Times L. R. 572.) And it is submitted that similarly a communication to the husband of a charge against his wife is a sufficient publication. The doubt suggested by Jervis, C. J., in Wenman v. Ash must mean that he considered a communication to the husband of a report prejudicial to his wife was primâ facie privileged as being a friendly act; not that it was no publication. To communicate to a wife a charge or complaint against her husband is not a friendly act, and is not privileged. (Jones v. Williams, supra.)

The converse case of the defendant and his wife seems never to have been decided. Is it a publication if a man tells his wife what he thinks of his neighbours? I presume it is, though the question seems never to have arisen in England; probably because in every such case there has been an almost immediate republication of the same slander (or an exaggerated version of it) by the wife to some third person; for which the husband would be equally answerable in damages, and which would be easier to prove. In America there is a dictum that the delivery of a libel by the author to his wife "in

confidence" is privileged. (Trumbull v. Gibbons, 3 City Hall Recorder, 97.) And in England it was decided in Jones v. Thomas, 34 W. R. 104; 53 L. T. 678; 50 J. P. 149, that the fact that defendant's wife was present on a privileged occasion, and heard what her husband said, would not take away the privilege, so long as her presence, though unnecessary, was not improper.

The plaintiff must prove a publication by the defendant in fact. A libel is deemed to be published as soon as the manuscript has passed out of defendant's possession (per Holroyd, J., in R. v. Burdett, 4 B. & Ald. 143), unless it comes directly and unread into the possession and control of the plaintiff. That some third person had the opportunity of reading it in the interval is not sufficient, if the jury are satisfied that he did not in fact avail himself thereof; even though it is clear that the defendant desired and intended publication to such third person.

Illustrations.

A letter is published as soon as posted, and in the place where it is posted, if it is ever opened anywhere by any third person.

Ward v. Smith, 6 Bing. 749; 4 M. & P. 595; 4 C. & P. 302.

Clegg v. Laffer, 3 Moore & Scott, 727; 10 Bing. 250.

Warren v. Warren, 4 Tyr. 850; 1 C. M. & R. 250.

Shipley v. Todhunter, 7 C. & P. 680.

The defendant wrote a letter and gave it to B. to deliver to the plaintiff. It was folded, but not sealed. B. did not read it; but conveyed it direct to the plaintiff. Held, no publication.

Clutterbuck v. Chaffers, 1 Stark. 471.

Day v. Bream, 2 Moo. & Rob. 54.

The defendant threw a sealed letter addressed to the plaintiff, "or C.," into M.'s enclosure. M. picked it up and delivered it unopened to the plaintiff himself, who alone was libelled. No publication.

Fonville v. Nease, Dudley, S. C. 303 (American).

By the 38 Geo. III. c. 71, s. 17 (now repealed), the proprietor of every newspaper was required to send a copy of every issue to the Stamp Office for Revenue purposes. Held, that proof of the delivery of a newspaper to the officer at the Stamp Office was sufficient evidence of the publication of a libel contained in it to render the proprietor liable to an action; "as the officer of the Stamp Office would at all events have an opportunity of reading the libel himself.”

R. v. Amphlit, 4 B. & C. 35; 6 D. & R. 125.

Mayne v. Fletcher, 9 B. & C. 382; 4 Man. & Ry. 312.

Posting up a libellous placard and taking it down again before anyone could read it, is no publication; but if it was exhibited long enough for anyone to read it, then defendant must satisfy the jury that no one actually did read it.

So it is no defence that the third person was not intended to overhear the slander or to read the libel, if in fact he has done so. An accidental or inadvertent communication is quite sufficient. (See Shepheard v. Whitaker, L. R. 10 C. P. 502; 32 L. T. 402; c. I. ante, p. 6.)

Illustrations.

The defendant by mistake directed and posted a libellous letter to the plaintiff's employer instead of to the plaintiff himself. Held, a publication.

Fox v. Broderick, 14 Ir. C. L. Rep. 453.

And see Tompson v. Dashwood, 11 Q. B. D. 43; 52 L. J. Q. B. 425; 48 L. T. 943; 48 J. P. 55.

Rev. Samuel Paine sent his servant to his study for a certain paper which he wished to show to Brereton; the servant by mistake brought a libellous epitaph on Queen Mary, which Paine inadvertently handed to Brereton, supposing it to be the paper for which he sent; and Brereton read it aloud to Dr. Hoyle. This would probably be deemed a publication by Paine to Brereton in a civil case (Note to Mayne v. Fletcher, 4 Man. & Ry. 312); but would not be sufficient in a criminal case.

R. v. Paine (1695), 5 Mod. 167.

For in a criminal case it is essential that there should be a guilty intention. R. v. Lord Abingdon, 1 Esp. 228.

See also Brett v. Watson, 20 W. R. 723.

Blake v. Stevens, 4 F. & F. 232; 11 L. T. 543.

But if I compose or copy a libel, and keep the manuscript in my study, intending to show it to no one, and it is stolen by a burglar and published by him; it is submitted that there is no publication by me, either in civil or criminal proceedings.

See Weir v. Hoss, 6 Alabama, 881.

But it would be a publication by me, if through any default of mine it got abroad.

Every one who requests, procures, or commands another to publish a libel is answerable as though he published it himself. And such request need not be express, but may be inferred from the defendant's conduct in sending his manuscript to the editor of a magazine, or making a statement to the reporter of a newspaper, with the knowledge that they will be sure to publish it, and without any effort

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