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NOTE 3.—“IF PUBLISHED CONTEMPORANEOUSLY WITH SUCH PROCEEDINGS.” Ifas 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 accurate report of judicial proceedings, whether published by a newspaper or not (f), and whether published contemporaneously with such proceedings or not was primâ facie privileged and in order to succeed the plaintiff would have 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, 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 present 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.
To sum up then, a report of judicial proceedings published in a newspaper or journal, will fall into one of the following classes :
(f) Per Brett, L. J., in Milissich v. Lloyds (1877), 46 L. J. C. P. 404; 36 L. T. 423; 13 Cox, C. C. 575.
(1.) Reports in a newspaper as defined by sect. 1 of the
Law of Libel Amendment Act, 1888 (f), published contemporaneously with such proceedings. These
are absolutely privileged by sect. 3 of the Act. (2.) Reports in a newspaper as so defined not published
contemporaneously with such proceedings. These obtain a qualified privilege by the common law, but the fact of their not being published contemporaneously, would be such strong evidence of malice
as to render the privilege practically non-existent. (3.) Reports not in a newspaper so defined. These also
obtain a qualified privilege by the common law which may be rebutted by proof that they were
published maliciously by the defendant. What then is the precise meaning of the words PUBLISHED CONTEMPORANEOUSLY WITH INGS”? Strictly speaking, a report published in a morning paper of a trial which has taken place on the previous day is not "published contemporaneously with such proceedings,” nor even the report in an evening paper on the same day. It cannot, however, be seriously contended that such reports are not now as they have been for more than a century privileged if “substantially correct." The difficulty of course arises when we consider what length of time must elapse between the trial and the publication of the report in order to bring the latter within the description “not published contemporaneously with such proceedings.” And it is evident that the time in question must vary according to the opportunity, and time of publication of the paper. Thus, a report published in a daily paper a fortnight after the proceedings had taken place, would be in a very different category to the same report published at the same time by a paper which only appeared once in every fortnight, and which had had no previous opportunity of publishing it. The practical importance of the section is however small, for a newspaper
(f) For definition, see supra, p. 28.
which published a stale report of a case would have great difficulty in satisfying a jury that it was not done maliciously, and if it failed it would be precisely in the same position as if the report were in the first instance held unprivileged.
Under this description of reports of judicial proceedings come reports of proceedings before a judge at chambers (g), in gaol before a registrar in bankruptcy (1), before a County Court Judge in his own room to which the public have access (i), before examiners duly appointed to inquire into the sufficiency of sureties offered on trial of an election petition (k); also, it is submitted, having regard to the case of Usill v. Hales (1), all reports of ex parte proceedings, whether such proceedings result in the discharge by the magistrate of the party charged (as in Curry v. Walter (m) and Lewis v. Levy (n)) or not.
ARTICLE 17.-Reports of proceedings in parliament.
A report of proceedings in either house of parliament is privileged, provided that it is fair and accurate; but such privilege will be rebutted, if plaintiff prove that defendant published such report maliciously (O).
NOTE.-As to the meaning of “fair and accurate,” see
(9) Smith v. Scott (1847), 2 C. & K. 580.
(h) Ryalls v. Leader and others (1865), L. R. 1 Ex. 296 ; 35 L. J. Ex. 185; 14 L. T. 563; 4 H. & C. 555; 30 J. P. 520; 12 Jur. N. S. 503; 14 W. R. 838.
(i) Myers v. Defries, Times, 23rd July, 1887.
(k) Cooper v. Lawson (1838), 8 A. & E. 746; 1 P. & D. 15; 1 W. W. & H. 601.
(1) (1878), 3 C. P. D. 179; 47 L. J. C. P. 323; 38 L. T. 65; 41 J. P. 743; 26 W. R. 371.
(m) (1796), 1 B. & P. 525; 1 Esp. 456. (n) (1858), 27 L. J. Q. B. 282; E. B. & E. 537; 4 Jur. N. S. 970.
(o) Wason v. Walter (1870), L. R. 4 Q. B. 73 ; 38 L. J. Q. B. 34; and see 3 & 4 Vict. c. 9, s. 3, p. 82, infra.
Article 16, Note 2, p. 29, supra. The above rule was for a long time doubtful, but it is now clearly and satisfactorily settled by Wason v. Walter (), in which case the plaintiff sued the proprietor of the “ Times” for publishing a report of a debate in the House of Lords commenting severely on plaintiff's conduct in procuring the presentation of a petition to the House of Lords charging a high judicial officer with misconduct: held that the report was privileged.
ARTICLE 18.—Reports of proceedings of public
meetings. A report published in any newspaper of the proceedings of a meeting bonâ fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, , whether the admission thereto be general or restricted, is privileged, provided that—(1) the report is fair and accurate; (2) the matter complained of is not blasphemous or indecent; and (3) the matter complained of is of public concern, or the publication thereof is for the public benefit. This privilege may be rebutted by proof (1) that the report was published maliciously; or (2) that the defendant has after request refused or neglected to insert in his newspaper a reasonable letter or statement by way of contradiction or explanation of such report (P).
NOTE 1.-The law contained in this article was introduced by the Act of 1888 (P).
As to the meaning of the term “newspaper, p. 28, supra; and of the words "fair and accurate," p. 29, supra.
(0) (1870), L. B. 4 Q. B. 73; 38 L. J. Q. B. 34.
In order to establish privilege for the publication of proceedings at a public meeting, the defendant will have to prove (a) that the report is fair and accurate ; (b) that the meeting was bonâ fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern; (c) that the matter complained of is of public concern, or that the publication of the matter complained of is for the public benefit.
There has been a great deal of discussion as to whether it will be necessary, in order to establish privilege for the publication in a newspaper of any of the proceedings specified in sect. 4 of the Act of 1888, to prove (1) that the matter is of public concern, and (2) that the publication thereof is for the public benefit; or whether it will be sufficient to prove either (1) or (2). At first sight the former construction appears to be the correct one, but it is submitted that a careful consideration of the words of the section (p) will prove that this is not so. In support of the latter contention, an opinion of counsel has already been made public to the effect that “it is impossible to give a very confident opinion as to the construction which will finally be put upon the clause; but on the whole it will probably be held that a fair and accurate report in a newspaper of the proceedings of any of the meetings specified is protected, where either the matter is of public concern or the publication of which is for the public benefit. For the privilege is only taken away where the matter is not of public concern, and the publication of it is not for the public benefit; and if so, it follows that where either it is of public concern or for the public benefit the privilege exists” (a).
This opinion is confirmed by a consideration of the clause in the same section which deals with blasphemous or indecent matter. That clause contains two provisoes—a proviso that no blasphemous matter shall be protected, and a
(p) Set out at pp. 103-104, supra.