ARTICLE 15.-Reports, &c. published by order of parliament.

All reports, papers, votes, and proceedings published by order of either House of Parliament, and every verified copy thereof, are absolutely privileged, and all proceedings at law, civil or criminal, will be immediately stayed on production of a certificate that such reports, &c. were published by order of either House (y).

NOTE 1.-It will be remembered that this statutory provision terminated the long struggle between the House of Commons and the Courts of justice, the latter having held, in the famous case of Stockdale v. Hansard (≈), that at common 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 (a).

ARTICLE 16.-Reports of proceedings in a Court of Justice.

A report in any newspaper (b) of proceedings publicly heard before any Court exercising judicial authority is privileged, provided that it is(1.) Fair and accurate (c);

2.) Published contemporaneously with such proceedings (d);

(y) 3 & 4 Vict. c. 9, ss. 1, 2, pp. 80—82, infra.

(z) (1839), 9 A. & E. 1, 243; 7 C. & P. 731; 8 Dowl. 148, 522;

3 Jur. 905; 2 M. & Rob. 9; 2 P. & D. 1.

(a) 3 & 4 Vict. c. 9, s. 3, p. 83, infra.

(b) As to the meaning of "newspaper," see p. 28, infra.

(c) Note 2.

(d) Note 3.

(3.) Not prohibited by order of the Court (e); (4.) Not blasphemous (f), seditious or indecent (g).

NOTE 1.-Having regard to sect. 3 of the Law of Libel Amendment Act, 1888 (h), it is submitted that the above is an accurate statement of the law as it now stands, so that the case of Stevens v. Sampson (i) 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 in journals which do not come within the meaning of "newspaper" as so defined; and it would seem that a report coming within the above article, and satisfying the provisoes 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 maliciously." Moreover, if this interpretation be incorrect, sect. 3 is merely declaratory of the law as it existed before the passing of the Act. 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 (j)

(e) Rex v. Clement (1821), 4 B. & Ald. 218; 11 Price, 69. (f) Per Bayley, J., in Rex v. Creevey (1813), 1 M. & S. 273; Rex v. Mary Carlile (1819), 3 B. & Ald. 167.

(g) Steele v. Brannan (1872), L. R. 7 C. P. 261; 41 L. J. M. C. 85; 26 L. T. 509; 20 W. R. 607. 51 & 52 Vict. c. 64, s. 3.

(h) Set out on p. 103, infra.

(i) (1879), 5 Ex. D. 53; 49 L. J. Q. B. 120 ; 41 L. T. 782; 44 J. P. 217; 28 W. R. 87.

(j) Sect. 3 of the Bill as originally submitted to Parliament provided that "" a fair and accurate report published in any newspaper of proceedings of, and in, any Court exercising judicial authority, shall be absolutely privileged." In Committee on June 6th, 1888,

(evidence of which would not, of course, 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 (k). If any of these contain a report of 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 (7). Where

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.

(k) Att.-Gen. v. Bradbury and Evans (1851), 21 L. J. Ex. 12; 7 Ex. 97; 16 Jur. 130.

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

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 (m), or the solicitor for one of the parties (n), it will be more easy to satisfy a jury that he published the report maliciously.

It is not necessary

NOTE 2.-"FAIR AND ACCURATE.' that the report should be verbatim, but it must be "substantially a fair account of what took place" in Court (0). Thus, “it is sufficient to publish a fair abstract" (p). A report is not fair and accurate which contains an epitome of the speeches of counsel but omits all reference to the evidence (q), or only refers to it by stating that the witnesses "proved all that had been stated by the counsel for the prosecution " ("), or which states that certain facts appeared from the evidence, when in reality no evidence had been given of such facts (s), or which states "from inquiries made by our reporter, &c., &c.," when in

(m) As in Waterfield v. Bishop of Chichester (1676), 2 Mod. 118; Myers v. Defries, Times, 23rd July, 1877; Saxby v. Easterbrook (1878), 3 C. P. D. 339; 27 W. R. 188; Dodson v. Owen (1885), 2 Times L. R. 111.

(n) As in Stevens v. Sampson (1879), 5 Ex. D. 53 (C. A.); 49 L. J. Ex. 120.

(0) Per Lord Campbell, C. J., in Andrews v. Chapman (1853), 3 C. & K. 289.

(p) Per Mellish, L. J., in Milissich v. Lloyds (1877), 46 L. J. C. P. 405; per Byles, J., in Turner v. Sullivan and others (1862), 6 L. T. 130.

(q) Flint v. Pike (1825), 4 B. & C. 473; 6 D. & R. 528; Saunders v. Mills (1829), 6 Bing. 213; 3 M. & P. 520; Woodgate v. Ridout (1865), 4 F. & F. 202.

(r) Lewis v. Walter (1821), 4 B. & Ald. 605; Roberts v. Brown (1834), 10 Bing. 519; 6 C. & P. 757; 4 M. & Scott, 407.

(8) Pinero v. Goodlake (1866), 15 L. T. 676; Ashmore v. Borthwick (1885), 49 J. P. 792; 2 Times L. R. 113, 209.

fact the reporter had not made inquiries but had merely copied certain affidavits (t). A report which only consists of part of the judgment, material parts of which are omitted, is of course not privileged (u).

If possible, the summing-up of the learned judge should always be given (x), although this will not necessarily render the report fair and accurate (y). The report must be strictly confined to what actually took place in Court. The reporter must not add any comments of his own, if he does, no privilege will attach thereto (≈). The report of a trial should never be preceded by a title which exaggerates the real facts of the case. If it is, even though the report itself is fair and accurate, damages may be recovered for the libellous title. Thus, damages have been recovered for heading the report of a case "Judicial delinquency” (a), "Shameful conduct of an attorney" (b), "An honest lawyer" (c)," Wilful and corrupt perjury " (d); the facts in each case not justifying such a description (e).

(t) Reg. v. Andrew Gray (1861), 26 J. P. 663.

(u) Hayward & Co. v. Hayward & Sons (1886), 34 Ch. D. 198; 56 L. J. Ch. 287; 55 L. T. 729; 82 Law Times (Newspaper), 61; 3 Times L. R. 102; 35 W. R. 392; Grimwade v. Dicks (1886), 2 Times L. R. 627.

(x) Milissich v. Lloyds (1877), 46 L. J. C. P. 404; 36 L. T. 423; 13 Cox, C. C. 575.

(y) MacDougall v. Knight (1889), 14 App. Cas. 194.

(z) Rex v. Lee (1804), 5 Esp. 123; Rex v. Fisher and others (1811), 2 Camp. 563; Rex v. Fleet (1818), 1 B. & Ald. 379; Cooper v. Lawson (1838), 8 A. & E. 746; 2 Jur. 919; 1 P. & D. 15; 1 W. W. & H. 601.

(a) Stiles v. Nokes (1806), 7 East, 493.

(b) Clement v. Lewis and others (1820), 3 Br. & Bing. 297; 7 Moore, 200; in the Court below, Lewis v. Clement (1820), 3 B. & Ald. 702; Bishop v. Latimer (1861), 4 L. T. 775.

(c) Boydell v. Jones (1838), 7 Dowl. 210; 1 Horn & H. 408; 4 M. & W. 446.

́(d) Lewis v. Levy (1858), 27 L. J. Q. B. 282; E. B. & E. 537; 4 Jur. N. S. 970.

(e) See also p. 15, supra.