§ 99. Qualified privilege. It is an essential element of all qualified privileges, that the communication under it be made in good faith. No person is allowed to take advantage of qualified privilege to vent his malice.

Whenever it is shown that the language complained of was uttered upon a privileged occasion, the law ceases to presume the existence of malice, and requires proof that there was actual malice. As it is expressed, the privileged occasion rebuts implied malice. It then becomes incumbent upon the plaintiff to prove that the defendant was actuated by express malice-malice in fact; and unless in such case the plaintiff does establish the existence of malice in fact his action fails. Whether a privilege exists is always a question of law for the court; whether the defendant was actuated by the proper motive is left to the jury.

In all cases of qualified privilege it is conclusive evidence of actual malice to prove that the defendant knew the charge to be false. For it is inconceivable that a man can have an innocent motive in uttering a defamatory charge that he knows to be false.

Cases of qualified privilege may be grouped under three heads: (1) Communications made in matters of public interest and general concern. (2) Communications made to persons to whom the defendant owes a duty to make communication. (3) Communications made in self-defense.

§ 100. Matters of public interest and concern.Anything that is of general concern to the inhabitants of a town, city or community is what is thus privileged. Though the matter be of only a local interest the rule applies, so long as the matter is not merely of private concern. All public institutions and their management, all public entertainments, published books, pictures pub

licly exhibited, the architecture of public buildings may be freely criticised. All appeals to the public are subject. to honest criticism and the critic will not be liable for false statements made. Whoever seeks notoriety or invites public attention challenges public criticism and must bear the burden of honestly made statements, even though they may be erroneous. All public officials and candidates for office may be freely criticised, provided the criticism be made in good faith.

But whenever matters of general concern are commented upon, the speaker or writer is bound to confine himself to what is of public nature. If this limit is transcended and private matters or private character touched upon, no privilege can be claimed therefor. For instance, though the official acts of an officer may in good faith be commented upon, by reason or by ridicule, even though the statements be in fact false and injurious, yet if the critic should go beyond the public matter, and falsely accuse the officer of a crime, it would affect him privately, and no protection would be given.

Reports of judicial proceedings are upon matters of public interest. Every fair and accurate report of judicial proceedings is privileged, though false defamatory matter be contained in it. The privilege does not attach, however, where the publication is prohibited by the court, or where the matter is obscene; for in such case the publisher is guilty of wrong in the very fact of publishing, and will not be permitted to avail himself of a legal protection for such wrong. The report to be privileged must be substantially a fair account of what actually took place in court. The reporter may not, however, select damaging parts and omit the beneficial parts; and he has no privilege to comment on the evidence and give his opinion of it. Indeed, if he mixes up comment with

what would otherwise be a fair report, the privilege is lost for the whole article.

Fair and accurate reports of proceedings of the legis-lature stand upon the same footing, and are subject to the same limitations, as in case of judicial proceedings. No other reports are privileged. No privilege can be claimed for reports of the doings of municipal legislatures, public meetings, political meetings, or stockholders' meetings, unless it is so provided by statute as it is in

some states.

§ 101. Communications made under duty. There is no liability for honest mistakes, where an employer is asked to give a statement regarding the character of a servant. But there is no protection given, if the false statement be made from an improper motive, or if made recklessly and wantonly. There is no privilege for officious intermeddling, as where no inquiry has been made, or where there is no duty to speak.

Answers made in good faith to inquiries about persons with whom business dealings are contemplated are protected even though they turn out to be false. Hence, reports of mercantile agencies to their customers are privileged, if made in good faith.

So, inquiries by and answers to one interested in discovering a wrongdoer, are privileged. Any relation of confidence is sufficient to raise a duty to make communications, and if they are made in good faith they are privileged. The following relations have been held to be of the privileged character: Husband and wife, father and child, brothers and sisters, guardian and ward, master and servant, principal and agent, landlord and tenant, lawyer and client, partners, and in one case it was held that intimate friendship might be a sufficient ground.

§ 102. Communications in self-defense. If the statement complained of be one which has been invited or requested by the plaintiff, it is privileged, even though false, provided it be made in good faith. For example, if the defendant had previously made the statement under a privilege, and the plaintiff demands an explanation in the presence of strangers, or if defamatory words had been said by the defendant to the plaintiff alone, and plaintiff afterwards bring a stranger and demand whether defendant had used the defamatory words, such subsequent statements are deemed to be made in self-defense and are privileged if in good faith.

§ 103. The remedy.-The civil remedy for libel or slander is an action for damages. The courts will not interfere by injunction to restrain the publication of a libel or slander, for the reason that it must first be established before a jury whether the matter is or is not actionable. But after a verdict for the plaintiff, a court of equity may enjoin the subsequent repetitions of the defamatory matter.

§ 104. The damages.-Considered from the point of view of the jury, the damages awarded may be: (1) Contemptuous, as where the defendant has been technically guilty of defamation, but the jury think the plaintiff greatly in fault, and therefore assess the damages at a nominal sum. (2) Substantial or compensatory, where the jury aims to arrive at the actual injury suffered by the plaintiff. (3) Exemplary or punitive, where the jury seek to express their sense of the defendant's harsh and malicious conduct by fining him in an amount beyond the compensatory damages.

Considered from the judge's point of view the damages assessed may be either: (1) General damages,

namely, the natural and probable consequences of the false charge, which are presumed by the law without evidence in all cases where the words are actionable per se. (2) Special damages, namely, such as the law will not infer, but requires to be established by evidence.

Wherever general damages are recoverable, special damages may also be recovered if specially pleaded and proved. Where a charge is not actionable per se, there is no cause of action unless the special damages be alleged and proved, and the recovery is limited to such special damages.

The amount recoverable by the plaintiff as compensatory damages may be larger or smaller according to the evidence. Whatever goes to show the greater extent of the injury is said to be in aggravation of damages; whatever goes to show the less extent of the injury is said to be in mitigation of damages.

By way of aggravation, evidence may be received of the social position and influence of both plaintiff and defendant and their pecuniary circumstances so far as the same may bear upon the influence exerted by the charge, the publicity of the charge, the fact that it was wholly unprovoked, and by some courts it is held that an unsuccessful plea of justification may be considered in aggravation, though such is not the general rule.

By way of mitigation of damages, evidence may be received that the words were spoken in passion or excitement provoked by plaintiff, and hence all the injury is not attributable to defendant's fault; that the defendant had no actual malice, was insane or drunk, so far as the same may have appeared at the time of the defamation, and so have caused the wrong to have a less injurious effect; that plaintiff's character was bad, or that general rumors existed that he was guilty; that the defendant has made ample retraction. While the fact