4 Com. c. 2.

The second difficulty arises from the different senses in which the word libel is used. Sometimes it is used to describe matter on the face of it defamatory, or on the face of it blasphemous, indecent, or seditious. This is the sense in which it is used when, in a civil action, an article is pronounced to be unquestionably libellous but also unquestionably true, or unquestionably absolutely privileged. Sometimes, on the other hand, "libel" is used to denote the indictable offence or actionable wrong arising from the publishing of defamatory, blasphemous, indecent, or seditious matter without lawful justification or excuse. That is the case when people talk of a person being convicted of libel. This confusion of expression has led to more confusion of thought on the subject than anything else. It is impossible to avoid using the word in both these meanings, but in this work we intend, as far as possible, when there is any danger of confusion, to distinctly specify in which sense the word is used.

Using the word in the sense of the offence or wrong arising from the publication of libellous matter, we shall first consider defamatory libel. It has always been an offence at common law "maliciously" to hold any Blackstone, person up to "hatred, contempt, or ridicule." When this malicious defamation is written, printed, and published, without lawful justification or excuse, it becomes a libel. So far all is simple enough; but when we attempt to define in strict terms "malice" and "defamation," the difficulties are endless. From the nature of the case it is inevitable that this should be so, for the question of “libel" or "no libel" has from time to time been so inextricably mixed up with our social, religious, and political prejudices, that the decisions alike of judges

and juries have been influenced by them. It follows that while the form of words defining the offence may have remained very much the same, the nature of the offence has varied.

In the first place, it has to be noted that the nature of the libel itself differs considerably according as it is regarded as a public Offence or a private Wrong. More than one attempt has been made within comparatively recent times to draw up authoritative definitions of one or other of these classes. In 1879, the committee of Judges appointed under the presidency of Lord Blackburn, for the purpose of preparing a draft Criminal Code, agreed upon the following definition of libel from the point of view of criminal law :

"Matter published without legal justification or excuse, designed to insult the person to whom it is published, or calculated to injure the reputation of any person by exposing him to hatred, contempt, or ridicule.

"Such matter may be expressed either in words legibly marked upon any substance whatever, or by any object signifying such matter otherwise than by words, and may be expressed either directly or by insinuation or irony."

It did not come within the scope of the commission of the Judges in 1879 to suggest a definition of the class of libel which is the subject of a Civil action, but for purposes of comparison we subjoin that given by the same distinguished Judge (Lord Blackburn) in a leading case (Capital and Counties Bank v. Henty) tried three 7 App. Cas. years afterwards :

:

"A written statement, published without lawful justification or excuse, calculated to convey to those to whom it is published an imputation on the plaintiffs injurious

G

741.

(1882.)

to them in their trade, or holding them up to hatred, contempt, or ridicule."

It is obvious that the words "written statement" in this definition must, for general application, be interpreted in the sense of the second paragraph of the definition of criminal libel given above. The point of importance as regards the newspaper press is that the libel may be embodied in a sketch, cartoon, or caricature, whether accompanied by letterpress or not.

The Legislature of the State of New York has recently (1882) adopted a somewhat stringently worded definition of libel. As the authorities on which it is based are practically the same in the two countries, the definition is worth quoting, although of course it has no binding effect in the English Courts. A criminal libel is defined (Penal Code, c. viii., § 242) as

66

"A malicious publication by writing, printing, picture, effigy, sign, or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule, or obloquy; or which causes, or tends to cause, any person to be shunned or avoided; or which has a tendency to injure any person or corporation or association of persons in his or their business or occupation."

In the Civil Code for the same State, which was drawn. up by the commission appointed for that purpose, and which has more than once passed both Houses, but has not yet received the signature of the Governor, the definition of a libel is (§ 29):

"A false and unprivileged publication by writing, printing, picture, or other fixed representation to the eye which exposes any person to hatred, contempt, ridicule, or obloquy; or which causes him to be shunned

or avoided; or which has a tendency to injure him in his occupation."

Although criminal libel must occupy the first place both historically and logically in any examination of the subject, yet in modern English newspaper law it has, for a variety of reasons, especially since recent legislation, assumed an altogether secondary position. We shall, therefore, take up first the defamatory libel from the point of view of civil as opposed to criminal law.

WHAT IS A LIBEL?—It will be seen from what has been said that to support an action for libel, the matter complained of must satisfy the following conditions::

It must be written, or printed, or otherwise expressed in some more or less permanent form.

It must be published.

It must convey some imputation upon the plaintiff's character; or tend to injure him in his trade or occupation; or hold him up to hatred, contempt, or ridicule.

It must be published maliciously, that is to say, without lawful justification or excuse.

The first two heads need not detain us long. It is the necessary object of a newspaper to print and to publish matter, so that both conditions may in most cases be taken for granted. But let us consider each proposition for a moment.

PERMANENT FORM.

The first condition is, that it must be written, printed, or otherwise expressed in some more or less permanent form.

This permanence, as opposed to the transient nature of spoken words, is of the essence of a libel; it is that which distinguishes it from slander. Provided this per

H

7 C. & P.

369.

(1835.)

4 Q. B. 185. (1849.)

manence is present, it does not matter by what means it be produced-whether by writing, drawing, or printing, or by all three combined.

may

An article which would not otherwise be libellous may become so when taken in conjunction with a caricature or sketch appearing in the same paper.

In Watts v. Fraser & Moyes the libel consisted of an article accompanied by a lithographed print of the plaintiff which it was alleged was intended to hold him up to ridicule.

PUBLICATION.

The second condition is, that it must be published.

In civil law publishing a libel means communicating it in any way to a person other than the individual libelled.

It may be well to point out that not only are the printing and original issue of a newspaper publication of the libel, but every subsequent sale of a copy of the newspaper containing the libel, no matter how long it may be after the original issue, constitutes a fresh publication on the part of the person selling it. The effect of this rule sometimes is to make a libel once more actionable after the lapse of more than six years since its first publication, when in the ordinary course the Statute of Limitations would act as a bar.

In the case of the Duke of Brunswick v. Harmer, the defendant, who was proprietor of the Weekly Dispatch, had, on 19th September, 1830, published in that newspaper libellous matter regarding the plaintiff. Seventeen years afterwards, on 26th September, 1847, an agent of the plaintiff, by the plaintiff's direction, went to the office of the Weekly Dispatch, and there bought a copy of the issue of the 19th September, 1830, which copy he afterwards delivered to the plaintiff.