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THE LAW OF LIBEL IN ITS RELATION

TO THE PRESS.

PART I.

OF LIABILITY TO A CIVIL ACTION.

ARTICLE 1.Definition of Libel. A LIBEL is a false representation in writing, printing, or other material form injurious to the reputation of any person (a).

NOTE.—“Injurious to the reputation," i.e., of a disparaging nature,--anything which exposes the plaintiff to hatred, contempt, ridicule, or obloquy, or causes him to be shunned or avoided, or has a tendency to injure him in his occupation (6). Thus, it has been held libellous to write

(a) Objection may be taken to the above definition, on the ground that it contains no reference to publication. But careful consideration has led me to think that it tends to accuracy of expression and clearness of thought to omit all such reference. Moreover, this course is justified by the language of the judges in the cases touching publication (e.g., per Lord Coke in John Lamb's case (1610), 9 Rep. fol. 60; Wood, B., in Maloney v. Bartley (1812), 3 Camp. 212 ; Lord Erskine in Burdett v. Abbot (1817), 5 Dow, H. L. 201; Best, C. J., in De Crespigny v. Wellesley (1829), 5 Bing. 402), where such phrases as “ the publication of a libel," "where anyone publishes a libel,” are of constant occurrence, showing clearly that the term libel is used in accordance with the meaning ascribed to it in the above definition.

(6) For examples of libels on journalists, see Heriot v. Stuart F.

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a

B

of a man that he is ungrateful (c), impecunious (d), insane (e), and even in one case, Churchill v. Hunt (f), that his conduct had been unfeeling.

Libel is to be distinguished from slander—the former is addressed to the eye, the latter to the ear-in other words, in the case of libel, the defamatory matter is in some permanent form, usually in writing or printing, though not necessarily so, e.g., an effigy (g), or statue (h), may constitute a libel. Slander, on the other hand, is always in the form of spoken words.

ARTICLE 2.-The Innuendo. The innuendo is an averment in the plaintiff's statement of claim, specifying the libellous meaning of the words complained of, and showing how they come to have that meaning, and how they relate to the plaintiff.

NOTE.—No innuendo is necessary where the words complained of are libellous in their ordinary meaning (ë). On the other hand, where the words complained of are not libellous in their ordinary meaning, or unless used with a special application, the use of an innuendo is essential to show the cause of action (j).

(1796), 1 Esp. 437; Wakley v. Cooke and Healey (1849), 19 L. J. Ex. 91; 4 Ex. 511; Campbell v. Spottiswoode (1863), 32 L. J. Q. B. 185; 8 L. T. 201; 3 B. & S. 769; 9 Jur. N. S. 1069 ; 11 W. R. 569; Russell and another v. Webster (1874), 23 W. R. 59.

(c) Cox y. Lee (1869), L. R. 4 Ex. 284; 38 L. J. Ex. 219.
(d) Eaton V. Johns (1842), 1 Dowl. N. S. 602.
(e) Morgan v. Lingen (1863), 8 L. T. N. S. 800.
(f) (1819), 2 B. & Ald. 685; 1 Chit. 480.
(9) 5 Rep. 125.
(h) Hawkins' Pleas of the Crown, 8th ed. 542.
(i) Russell and another v. Webster (1874), 23 W. R. 59.

(j) Per Lord Selborne in Capital und Counties Bank v. Henty (1882), 7 App. Cas. at p. 748.

The question whether the words are capable of the alleged meaning, and whether such meaning is actionable, is for the judge; the question whether, under the circumstances of the case, they bear such meaning, is for the jury (k).

ARTICLE 3.—No action without publication. No action can be maintained for libel unless there be publication, i. e., a communication of the words complained of to one person other than the plaintiff.

NOTE.-The sale of each copy of the newspaper containing the libel is a publication thereof (1), rendering the distributor as well as his principal responsible for the libel. So, too, is the delivery of a libellous manuscript to the printer (m), and it would seem even the delivery of the newspaper to a government official as required by law (n). But in all these cases it is open to the defendant to show that he did not in fact publish the libel, which he can do by proving that he “did not know that the paper contained

or was likely to contain a libel," and that he “ought not to have known it, having used reasonable care(c). Thus he is not liable where he cannot

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(k) Capital and Counties Bank v. Henty (1882), 7 App. Cas. 741; 52 L. J. Q. B. 232; 47 L. T. 662; 47 J. P. 214; 31 W. R. 157.

(1) Duke of Brunswick v. Harmer (1849), 19 L. J. Q. B. 20; 3 C. & K. 10; 14 Jur. 110; 14 Q. B. 185.

(m) Baldwin v. Elphinston (1775), 2 W. Bl. 1037; Watts v. Fraser and another (1835), 6 L. J. K. B. 226; 7 Ad. & E. 223; 7 C. & P. 369; 1 Jur. 671; 1 M. & Rob. 449; 2 N. & P. 157 ; W. W. & D. 451.

(n) Rex v. Amphlit (1825), 4 B. & C. 35; 6 D. & R. 125.

(0) Per Lord Esher, M. R., in Emmens v. Pottle and Son (1885), 16 Q. B. D. p. 357. See also per Bowen, L. J., at

p.

358.

read (), or where he has carried the libel in a sealed letter (p), or in a parcel containing handbills (2).

There is also a primâ facie case of publication against the defendant where the manuscript from which the libel was printed is shown to be in his handwriting, there being no necessity to prove expressly that he ordered or authorized the printing (s).

ARTICLE 4.-Is the question of publication for the

judge or the jury ? The jury find whether the facts on which it is endeavoured to prove publication are true, but the judge decides whether the facts as proved constitute a publication.

ARTICLE 5.How to discover the printer and pro

prietor of a newspaper, and to prove publication.

Every paper or book which is meant to be published or dispersed must bear on it the name and address of the printer (s); and the printer

(0) Per Lord Kenyon, C. J., in Rex v. Holt (1792), 5 T. R. 144.

(p) Per Lord Kenyon, C. J., in Rex v. Topham (1791), 4 T. R. 129.

(9) Day v. Bream (1837), 2 Moo. & R. 55.

(r) Per Holt, C. J., in Rex v. Beere (1698), 12 Mod. 221; 1 Lord Raym. 414; per Lord Erskine in Burdett V. Abbot (1811), 5 Dow, H. L. at p. 201; Adams v. Kelly (1824), Ry. & M. 157; Tarpley v. Blabey (1836), 2 Bing. N. C. 437; 7 C. & P. 395; 1 Hodges, 414; 2 Scott, 642; Bond v. Douglas (1836), 7 C. & P. 626; Reg. v. Lovett (1838), 9 C. & P. 462; per Byles and Mellor, JJ., in Parkes v. Prescott and another (1869), L. R. 4 Ex. 181—186; 38 L. J. Ex. 105; 20 L. T. 173; 17 W. R. 773.

(8) 2 & 3 Vict. c. 12, s. 2.

must for six calendar months carefully preserve at least one copy of each paper printed by him, and write thereon the name and address of the person who employed and paid him to print it(t).

A register of newspaper proprietors is established at Somerset House (u), which is open to the inspection of any person on payment of one shilling (). It is the duty of the printers and publishers of every newspaper to make a return to the registry office each July, containing the title of the newspaper and the names, occupations, and addresses (business and residential) of all the proprietors of the paper (y); and a certified copy of an entry in this register is sufficient primâ facie evidence of all matters and things thereby appearing (2).

2 Note. This system of registration, excellent as it is, is not, however, perfect. For, in the first place, if the newspaper is published by a limited company the Act has no application (a), and the plaintiff will search the register in vain. In the second place, even when the defendant is not a limited company, the plaintiff cannot be quite sure that the defendant was proprietor of the newspaper at the time the libel was published merely because his name appears on the register, for since the return was made he may have ceased to be proprietor; and though the transfer of interest may (6) have been registered by either party thereto, there is no provision which renders it illegal not to

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The plaintiff may of course fix the defendant with proprietorship at the time of publication by administering interrogatories, or by proving that the newspaper was

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