convicted, and imprisoned for the manslaughter of these two persons;" and that it was not necessary to further justify the epithets "scamps," "rotgut rascals," "wholesale poisoning "(i).

Where the libel is divisible, the defendant may justify one part and admit liability as to the rest; but the Court will not tolerate a plea leaving in doubt what the defendant justifies and what he does not. He must distinctly sever that which he justifies from that which he does not (j).

ART. 20.-Distinction between report and

comment.

A report is an account, abbreviated or otherwise, of proceedings which have actually taken place. Comment on the other hand is the judgment or opinion of the writer on those proceedings.

NOTE. The distinction between report and comment cannot be too strongly emphasized, and the necessity for keeping that distinction clearly in mind cannot be too strongly impressed upon all journalists and writers for the Press. If any comments are made, they should not be made as part of the report. The report should

(i) Morrison v. Harmer (1837), 3 Bing. N. C. 759; 3 Hodges, 108; 4 Scott, 533. See also Weaver v. Lloyd (1824), 2 B. & C. 678; 1 C. & P. 295; Edwards v. Bell (1824), 1 Bing. 403; Warman v. Hine (1837), 1 Jur. 820; Edsall v. Russell (1842), 12 L. J. C. P. 4; 6 Jur. 996; Behrens v. Allen (1862), 3 F. & F. 135; 8 Jur. N. S. 118.

(j) Fleming v. Dollar (1889), 23 Q. B. D. 388; 58 L. J. Q. B. 548; 61 L. T. 230.

be confined to what takes place in Court, and the two things, report and comment, should be kept separate"(k). And this is equally true, not only of a report of what takes place in Court, but also of all other proceedings, reports of which are primâ facie privileged. A report, if it fall within Article 23, 24, or 25, pp. 90—102, is absolutely privileged; whilst, if it fall within Articles 26-35, pp. 102—138, it comes under the head of qualified privilege, and even though defamatory is protected in the absence of malice on the defendant's part. Comment, on the other hand, if fair and bonâ fide on a matter of public interest, is no libel (7).

It should be noticed that although a report of judicial proceedings which comes within Article 25 or 26 is privileged, no comment is allowed until the proceedings terminate (m). Comment of every kind, even such as is temperate and judicious, and perfectly proper after the case is concluded, is a contempt of Court if published before (n).

(k) Per Lord Campbell, C. J., in Andrews v. Chapman (1853), 3 C. & K. at p. 288.

(1) Article 21, p. 78, infra.

(m) Lewis v. Levy (1858), 27 L. J. Q. B. 282; E. B. & E. 537; Daw v. Eley (1868), L. R. 7 Eq. 49; 38 L. J. Ch. 113.

(n) Tichborne v. Mostyn (1867), L. R. 7 Eq. 55, n.; 17 L. T. 5; In re The Cheltenham and Swansea Wagon Co. (1869), L. R. 8 Eq. 580; 38 L. J. Ch. 330; 20 L. T. 169; Tichborne v. Tichborne (1870), 39 L. J. Ch. 398; 22 L. T. 55; Robertson v. Labouchere (1877), 42 J. P. 710; Buenos Ayres Gas Co. V. Wilde (1880), 42 L. T. 657; Kitcat v. Sharp (1882), 52 L. J. Ch. 134; 48 L. T. 64; Dallas v. Ledger (1888), 52 J. P. 328; Hunt v. Clarke, Re O'Malley (1889), 58 L. J. Q. B. 490; 61 L. T. 343; In re Crown Bank, In re O'Malley (1890), 44 Ch. D. 649; 59 L. J. Ch. 767.

Where, however, the offence complained of, though technically a contempt of Court, is not likely to substantially prejudice the parties in the action, no order for committal will be made (0).

ART. 21.-Fair and bonâ fide comment on a matter of public interest.

No action lies if the defendant can prove that the words complained of are a fair and bona fide comment on a matter of public interest.

The Court decides whether the matter commented on is one of public interest; the jury, if the Court is of opinion that there is some evidence that the comment is unfair, finds whether it is so in fact.

NOTE 1." It is incorrect to say, as some writers do, that bonâ fide comments on matters of public interest come under qualified privilege" (p). The defence in such a case really is, that the words are not defamatory-that fair and proper comment is no libel (q). "It is only when the writer goes beyond the limits of fair criticism that his criticism passes into the region of libel at all" ("). If such comments were privileged, in order to succeed plaintiff would have to prove

(0) Hunt v. Clarke, Re O'Malley (1889), 58 L. J. Q. B. 490 ; 61 L. T. 343.

(p) Per Blackburn, J., in Campbell v. Spottiswoode (1863), 3 B. & S. 769. And see per Lord Esher, M. R., and Bowen, L. J., in Merivale v. Carson (1887), 20 Q. B. D. 275.

(9) Per Blackburn, J., 32 L. J. Q. B. at p. 202.

(r) Per Bowen, L. J., in Merivale v. Carson (1887), 20 Q. p. 283.

B. D. at

malice, however false and injurious the words complained of may have been, while defendant would only have to prove that at the time he made the charges he believed that they were true; and this is certainly not the law (8); for, though "honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment, it cannot in itself prevent the matter being libellous” (t).

"FAIR AND BONA FIDE COMMENT."

The limits of fair comment on matters of public interest are very wide. "Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment. Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this-would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said?" (u).

(s) See "A Digest of the Law of Libel and Slander," by W. B. Odgers, 2nd ed. p. 33.

(t) Per Blackburn, J., in Campbell v. Spottiswoode (1863), 32 L. J. Q. B. p. 202.

(u) Per Lord Esher, M. R., in Merivale v. Carson (1887), 20 Q. B. D. at pp. 280, 281.

"The nearest approach, I think, to an exact definition of the word 'fair,' is contained in the judgment of Lord Tenterden, C. J., in Macleod v. Wakley (t), where he said, 'Whatever is fair and can be reasonably said of the works of authors, or of themselves connected with their works, is not actionable unless it appears that, under the pretext of criticising the works, the defendant takes an opportunity of attacking the character of the author: then it will be a libel.' It must be assumed that a man is entitled to entertain any opinion he pleases, however wrong, exaggerated, or violent it may be; and it must be left to the jury to say whether the mode of expression exceeds the reasonable limits of fair criticism.

The writer would be travelling out of the

region of fair criticism

if he imputes to the author something which he in fact has not written ❞ (u).

And the question whether the words complained of are or are not fair comment is essentially for the jury. "Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men or the proceedings in courts of justice or in Parliament, or the publication of a scheme or a literary work. But it is always left to a jury to say whether the publication has gone beyond the limits of a fair

(t) (1828), 3 C. & P. at p. 313.

(u) Per Bowen, L. J., in Merivale v. Carson (1887), 20 Q. B. D. at pp. 283, 284.