law no privilege attached to the publication of parliamentary reports and papers, even if such publication were by order of the whole House.

NOTE 2.-The publication of extracts from or abstracts of such reports, &c. is privileged, if, in the opinion of the jury, such publication was bonâ fide and without malice (0).

ART. 25.-Reports in a newspaper of proceedings in a court of justice.

It is submitted that a report in any newspaper (p) of proceedings publicly heard before any Court exercising judicial authority, published contemporaneously with such proceedings (q), is privileged, provided that it isis

(1.) Fair and accurate.

(2.) Not prohibited by order of the Court (r)

(3.) Not blasphemous (s), seditious, or indecent (t). NOTE 1. As to the meaning of the words proceedings publicly heard before any Court exercising judicial

(0) 3 & 4 Vict. c. 9, s. 3, p. 227, infra.

(p) As to the meaning of "newspaper," see p. 98, infra. (9) Note 3.

(r) Rex v. Clement (1821), 4 B. & Ald. 218; 11 Price, 69. (s) Rex v. Mary Carlile (1819), 3 B. & Ald. 167.

(t) Steele v. Brannan (1872), L. R. 7 C. P. 261; 41 L. J. M. C. 85; 26 L. T. 509. 51 & 52 Vict. c. 64, s. 3.

authority, and fair and accurate, see respectively, pp. 103, 104, and 104—107.

Having regard to sect. 3 of the Law of Libel Amendment Act, 1888 (u), it is submitted that the above is an accurate statement of the law as it now stands. It follows that the case of Stevens v. Sampson (x) is no longer law, except as to reports of judicial proceedings in a newspaper as defined by the Act, not published contemporaneously with such proceedings, and reports appearing elsewhere than in a "newspaper" as so defined. And it would seem that a report coming within the above Article, and satisfying the provisos contained therein, is absolutely privileged, so that, no matter how malicious may have been the publication of it, no action will lie. For although sect. 3 does not state in express terms that the report shall be absolutely privileged, there are no words, as in sect. 4, to the effect that the report shall be privileged "unless it shall be proved that such report was published or made maliciously." Moreover, if this interpretation be incorrect, sect. 3 is merely declaratory of the law as it existed before the passing of the Act. On the other hand, if such reports be in fact absolutely privileged, a remarkable example is afforded of the failure of the legislature to accomplish its intentions, for it is quite clear from the debates in parliament (y)

(u) Set out on p. 244, infra.

(x) (1879), 5 Ex. D. 53; 49 L. J. Q. B. 120.

(y) Sect. 3 of the Bill as originally submitted to Parliament provided that "a fair and accurate report published in any

F.

H

(evidence of which would, of course, not be admitted to show what those intentions were) that the legislature did not intend that such reports should be privileged if published maliciously.

Newspaper.-By sect. 1 of the Law of Libel Amendment Act, 1888, the meaning of the word newspaper for the purposes of such Act is defined to be the same as in the Newspaper Libel and Registration Act, 1881, i.e., "any paper containing public news intelligence or occurrences, or any remarks or observations therein printed for sale, and published in England or Ireland periodically, or in parts or numbers at intervals not exceeding twenty-six days between the publication of any two such papers, parts, or numbers; also any paper printed in order to be dispersed and made public weekly or oftener, or at intervals not exceeding twenty-six days, containing only, or principally, advertisements." Therefore the Act has no application to magazines, or to monthly trade papers, or to any paper or pamphlet, though printed for sale and containing public news, and published periodically, if such publication be at intervals exceeding twenty-six days (2). If any of these contain a report of

newspaper of proceedings of and in any Court exercising judicial authority, shall be absolutely privileged." In Committee on June 6th, 1888, Sir Algernon Borthwick moved and carried an amendment to the effect that the word "absolutely" should be omitted, in order, as was then expressly stated, to render such reports unprivileged if it were proved that they had been published maliciously.

(2) Att.-Gen. v. Bradbury and Evans (1851), 21 L. J. Ex. 12; 7 Ex. 97.

judicial proceedings, such report is in no way affected by the Act of 1888—the law still being that it is privileged, provided that it is— (1) fair and accurate;

(2) not prohibited by order of the Court; (3) not blasphemous, seditious, or obscene; but, and this is the point to notice,-all privilege which the defendant may have will be effectually rebutted by proving that he published the libel maliciously (a). Where the defendant has published the report complained of in the ordinary course of his business as proprietor, editor, or reporter of the newspaper, it will be very difficult, if not impossible, to prove malice; but where the defendant was a party to the action reported (b), or the solicitor for one of the parties (c), it will be more easy to satisfy a jury that he published the report maliciously.

NOTE 2.-If published contemporaneously with such proceedings. If, as above submitted, sect. 3 of the Act of 1888 extends the privilege hitherto possessed by reports of judicial proceedings published in a newspaper, it is, on the other hand, at least open to question whether by the insertion of these words it does not restrict it. Prior to the passing of this Act every fair and

(a) Salmon v. Isaac (1869), 20 L. T. 885.

(b) As in Dodson v. Owen (1885), 2 Times L. R. 111. (c) As in Stevens v. Sampson (1879), 5 Ex. D. 53 (C. A.); 49 L. J. Ex. 120.

accurate report of judicial proceedings, whether published by a newspaper or not (d), and whether published contemporaneously with such proceedings or not, was primâ facie privileged, and in order to succeed the plaintiff would have had to prove that the defendant had published the report maliciously. The fact that the report was not published until some time after the proceedings had taken place would be evidence of malice, but that was all; it would not ipso facto render the report unprivileged, and the jury would have to find malice. Though the matter is not wholly free from doubt, it is submitted that at the present time the law is still the same, except in the case of reports which come within sect. 3 of the Law of Libel Amendment Act, 1888. It has been suggested, erroneously in the writer's opinion, that the effect of this section is to deprive of all privilege every report in a newspaper of proceedings publicly heard before any Court exercising judicial authority, if it is not published contemporaneously with such proceedings, even though fair and accurate, and published bonâ fide and without malice. It is, however, submitted that if the Court is of opinion that the report is not published contemporaneously with the proceedings, the section does not apply, and the privilege is then the qualified privilege given by the common law, which will be rebutted on proof of malice.

(d) Per Brett, L. J., in Milissich v. Lloyds (1877), 46 L. J. C. P. 404; 36 L. T. 423.