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above, the law of publication in criminal libel is the same as that in civil cases. (Part I., Articles 3 and 5.) As Bayley, J., well puts it in Rex v. Carlile (t), “Not only the party who originally prints, but every party who utters, who sells, who gives, or who lends a copy of an offensive publication will be liable to be prosecuted as a publisher. The mere delivery of a libel to a third person by one conscious of its contents amounts to a publication, and is an indictable offence” (u).
ARTICLE 4.—No prosecution for newspaper libel
except by leave of judge. No criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper (a), for any libel published therein without the order of a judge at Chambers being first had and obtained. Such application shall be made on notice to the person accused, who shall have an opportunity of being heard against such application(y).
NOTE.—This provision replaced sect. 3 of the Newspaper Libel and Registration Act, 1881, which required the fiat of the Director of Public Prosecutions before a criminal prosecution could be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper for any libel published therein. The repealed section really afforded little or no protection to the proprietor or editor of a newspaper, for as Lord Coleridge
(t) (1819), 3 B. & Ald. 169. See also Rex v. Dover (1663), 2 Harg. St. Tr. 457; 6 How. St. Tr. 547; Reg. v. Stanger (1871), L. R. 6 Q. B. 352; 40 L. J. Q. B. 96; 24 L. T. 266; 35 J. P. 84, 580; 19 W. R. 640.
(u) Per Wood, B., in Maloney v. Bartley (1812), 3 Camp. 213. (2) As to meaning of “newspaper,” see p. 28, supra. (y) 51 & 52 Vict. c. 64, s. 8.
pointed out in the House of Lords, the Director of Public Prosecutions frequently issued his fiat for the institution of criminal proceedings for libels in newspapers when he ought to have refused it. The judge in chambers will make no order under this section unless he is satisfied that the case is one which will not be met by a civil action.
Having regard to the construction placed by the Court upon the 3rd section (now repealed) of the Act of 1881, it would seem that the above provision has no application to any criminal information (y). Moreover, its advantages are limited to “the proprietor, publisher, editor, or any person responsible for the publication of a newspaper,” as to which several points are noticeable. In the first place it affords no protection to the actual composer, or author of the libel, to the reporter, or the writer of any article, even though attached to the staff of the newspaper, or to the compositor, or the office boy, all of whom are liable to be prosecuted at common law. It is doubtful whether it includes the printer under the phrase "person responsible for the publication.” The Act of 1888, unlike that of 1881, contains no definition of proprietor, so that it is difficult to say precisely what construction the Court will put upon the term. It would seem unlikely, in the absence of any express clause to that effect, that the wide meaning given to it in the Act of 1881 will be held applicable. Further, it will be noticed that the section is confined to newspapers as defined by the Act of 1888 (-), i.e., as defined by sect. 1 of the Act of 1881. Therefore it has no application to books or periodicals not coming within that definition, q. v., p. 28, supra.
(y) Reg. v. Yates (1883), 11 Q. B. D. 750 ; 52 L. J. Q. B. 778; 15 Cox, C. C. 272; 48 J. P. 102; Yates v. The Queen (1885), 14 Q. B. D. 648 (C. A.); 54 L. J. Q. B. 258; 52 L. T. 305; 15 Cox, C. C. 686; 49 J. P. 436; 33 W. R. 482.
(z) 51 & 52 Vict. c. 64, s. 1.
ARTICLE 5.—Defences. The defences to criminal proceedings for libel are
1. That the words complained of are true, and that it was for the public benefit that they should be published (6). (Article 6, infra.)
( 2. That the publication of the words complained of is privileged. (See Note, infra, and Part I., Articles 14—20.)
3. That the words complained of are a fair and bonâ fide comment on a matter of public interest. (See Note, infra, and Part I., Article 13.)
4. That the publication was made without the authority or knowledge of the defendant, and did not arise from want of due care or caution on his part(c). (Article 7, infra.)
NOTE.—Of the above defences those numbered 2 and 3 have already been fully dealt with in treating of the defences to an action. (See Part I. Articles 13–20.) Whether the defence be that the words complained of were published on a privileged occasion (Part I. Articles 14–20), or were a fair and bonâ fide comment on a matter of public interest (Part I. Article 13), the law is precisely the same in civil and criminal proceedings. And here again, as was observed in treating of the defences to an action, it may be said that it is also a defence that the words complained of are not libellous (Part I. Article 1), or do not relate to the prosecutor (Part I. Article 2), or that there has been no publication (Part II. Article 3); but in all these cases the onus of proving the contrary is on the prosecutor, and if he does not do so, he fails to make out even a primâ facie case.
(6) 6 & 7 Vict. c. 96, s. 6.
(c) Ibid. s. 7.
ARTICLE 6.- Defence under s. 6 of Lord Campbell's
Act (6 8 7 Vict. c. 96). On the trial of any indictment or information for a libel, it is a good defence to prove that the words complained of are true, and that it was for the public benefit that they should be published (d).
NOTE.—It has already been pointed out that the truth of the words complained of affords a good defence to an action for libel; but this is not so in the case of criminal proceedings, the defendant must be prepared to go further and prove not only that the words complained of are true, but also that it was for the public benefit that they should be published. If he can satisfy a jury on both these points, he will be entitled to a verdict of not guilty by virtue of s. 6 of Lord Campbell's Act (6 & 7 Vict. c. 96). The defendant must prove the truth of the words complained of with the same exactness required of him in a civil action. (See Part I. Article 11.) It will be noticed that by the express words of the above section (e), this defence will not be available unless it be specially pleaded. Moreover it has no application to blasphemous, seditious, or obscene words ($).
ARTICLE 7.-Employer's criminal liability for libels
published by his servants. Upon the trial of any indictment or information for the publication of a libel, it is a good defence to prove that such publication was made
(d) 6 & 7 Vict. c. 96, s. 6, p. 85, infra. (e) See Appendix B., p. 85, infra. (f) Ex parte O'Brien (1883), 12 L. R. Ir. 29; 15 Cox, C. C. 180.
without the authority, consent, or knowledge of the defendant, and that the said publication did not arise from want of due care or caution on his part (9).
NOTE.—This defence, which, it may be noticed, extends to every indictment and information for libel, owes its existence to sect. 7 of Lord Campbell's Act, and is peculiar to the criminal law. The general rule of law, as we have seen (Part I., Article 8, supra), is that a principal or master is liable for any libel published by his agent or servant, with his authority or consent; and this is true not only as regards liability to an action, but also as regards criminal liability. Moreover, as has been pointed out, provided that the agent or servant, in publishing such libel, was acting in pursuance of general orders, the master is equally liable to an action, though he was totally ignorant of the fact of publication; and, prior to Lord Campbell's Act, he would have been criminally liable
Now, however, in accordance with the above provision, the proprietor of a newspaper is not criminally liable for a libel which has been inserted in it without his knowledge or consent merely because he has given the editor a general authority to publish what he thinks proper. therein (i). In all such cases, it will be a question for the jury whether the publication arose from any want of due care and caution on the defendant's part; and the fact that the
(g) 6 & 7 Vict. c. 96, s. 7.
(h) Rex v. Dodd (1736), 2 Sess. Cas. 33; Nutt's case (1727), 1 Barnard. K. B. 306; Fitz. 47; Rex v. Cuthell (1799), 27 How. St. Tr. 642; Rex v. Walter (1799), 3 Esp. 21 ; Rex v. Gutch and others (1829), Moo. & Mal. 433.
(i) Reg. v. Holbrook and others (1877), 3 Q. B. D. 35; 37 L. T. 530; 13 Cox, C. C. 650 ; 26 W. R. 144 ; (1878), 4 Q. B. D. 42; 48 L. J. Q. B. 113; 39 L. T. 536; 14 Cox, C. C. 185; 27 W. R. 313.