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him for 1001. (k). And to call the editor of a newspaper “ a felon editor,” is not justified by proof that the person libelled had been convicted of felony, and condemned to a year's imprisonment; inasmuch as a person who has been convicted and suffered his term of imprisonment does not, in law, continue to be a felon (1).

Where the libel imputes the crime of bigamy to the plaintiff, and the plaintiff pleads justification, there must be “the same strictness of proof as on a trial for bigamy(m). And if the libel complained of be that A. B. said that plaintiff did a disgraceful act, proof that A. B. did in fact say so is no defence, the whole libel must be justified, and it must be proved that plaintiff did, in fact, do the act alleged (n).

So if an account of a trial be published setting out counsel's speech, and stating that the facts opened were proved, when actually the evidence only bore out part of the facts so stated, it is no defence to plead that the facts were so stated by counsel—the facts so stated must be proved true or the defendant will fail (6).

NOTE 2.-But, on the other hand, it is not necessary to justify every detail of the charge or general terms of abuse,

(k) Wakley v. Cooke and Healey (1819), 19 L. J. Ex. 91; 4 Ex. 511.

(1) Leyman v. Latimer (1877-8), 3 Ex. D. 15, 352; 47 L. J. Ex. 470; 37 L. T. 360, 819; 14 Cox, C. C. 51 ; 25 W. R. 751; 26 W. R. 305.

(m) Per Lord Denman, C. J., in Willmett v. Harmer (1839), 8 C. & P. at p. 697. See also Smith v. Parker (1844), 14 L. J. Ex. 52; 2 D. & L. 394; 13 M. & W. 459; O'Brien v. Bryant (1846), 16 L. J. Ex. 77; 4 D. & L. 341; 16 M. & W. 168.

(n) De Crespigny v. Wellesley (1829), 5 Bing. 392; 2 M. & P. 695; M'Pherson v. Daniels (1829), 10 B. & C. 263; 5 M. & R. 251 ; Richards v. Richards (1844), 2 M. & Rob. 557; Watkin v. Hall (1868), L. R. 3 Q. B. 396; 37 L. J. Q. B. 125; 18 L. T. 561; 16 W. R. 857.

(0) Lewis v. Walter (1821), 4 B. & Ald. 605. And see also cases cited on p. 21, infra.

provided that the gist of the libel is proved to be in substance correct, and that the details, &c. which are not justified, produce no different effect on the mind of the reader than the actual truth would do (p). Thus, where the libel complained of was that “ L., B., and G. are a gang who live by card-sharping," it was held to be sufficient justification to prove that upon two distinct occasions L., B., and G. had cheated at cards (9).

So, where the plaintiffs were accused of being “impudent and ignorant scamps who had the audacity to pretend to cure all kinds of diseases with one kind of pill," and their business was referred to as “homicidal tricks,” and

, “wholesale poisoning,” and it was stated that several of them “had been convicted of manslaughter, and fined and imprisoned for killing people with enormous doses of their universal vegetable boluses," it was held that the libel was in substance correct upon proof" that the plaintiffs' pills when taken in large doses as recommended by the plaintiffs were highly dangerous, deadly, and poisonous, and “ that two persons had died in consequence of taking large quantities of them and that the people who had administered these pills were tried, convicted, and imprisoned for the manslaughter of these two persons,” and that it was not necessary to further justify the epithets ," "rotgut rascals," "wholesale poisoning” (r).



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() Willmett v. Harmer and another (1837), 8 C. & P. 695. (9) Reg. v. Labouchere (1880), 14 Cox, C. C. 419.

(r) Morrison v. Harmer (1837), 3 Bing. Ņ. C. 759; 3 Hodges, 108; 4 Scott, 533. See also Weaver v. Lloyd (1824), 2 B. & C. 678; 1 C. & P. 295; 4 D. & R. 230; Warman v. Hine (1837), 1 Jur. 820; Edsall v. Russell (1842), 12 L. J. C. P. 4; 2 Dowl. N. S. 641 ; 6 Jur. 996 ; 4 M. & Gr. 1090; 5 Scott, N. R. 801; Behrens V. Allen (1862), 3 F. & F. 135; 8 Jur. N. S. 118.



ARTICLE 12.Distinction between report and

comment. A report is an account, abbreviated or otherwise, of proceedings which have actually taken place. Comment on the other hand is the judgment or opinion of the writer on those proceedings.

Note.—The distinction between report and comment cannot be too strongly emphasized, and the necessity for keeping that distinction clearly in mind cannot be too strongly impressed upon all journalists and writers for the Press. “If any comments are made, they should not be made as part of the report. The report should be confined to what takes place in Court, and the two things, report and comment, should be kept separate” (). And this is equally true, not only of a report of what takes place in Court, but also of all other proceedings, reports of which are primâ facie privileged. A report, if it fall within Article 15 or 16, is absolutely privileged; whilst, if it fall within Articles 17, 18, 19, or 20, it comes under the head of qualified privilege, and even though libellous is protected in the absence of malice on the defendant's part. Comment, on the other hand, if fair and bonâ fide on a matter of public interest is no libel. (See Article 13, infra.)

It should be noticed that although a report of judicial proceedings which comes within Article 16 is privileged, po comment is allowed until the proceedings terminate (t). Comment of every kind, even such as is temperate and judicious, and perfectly proper after the case is concluded, is a contempt of Court if published before (u).

(8) Per Lord Campbell, C.J., in Andrews v. Chapman (1853), 3 C. & K. at p. 288.

(t) Lewis v. Levy (1858), 27 L. J. Q. B. 282; E. B. & E. 537; 4 Jur. N. S. 970; Daw v. Eley (1868), L. R. 7 Eq. 49; 38 L. J. Ch. 113; 17 W. R. 245.

(u) Roach v. Garvan, Re Read and Huggonson (1742), 2 Atk. 469; 2 Dick. 794; Rex v. Clement (1821), 4 B. & Ald. 218; 11 Price, 69;

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ARTICLE 13.–Fair and bonâ fide comment on a matter

of public interest. No action lies if the defendant can prove that the words complained of are a fair and bonâ fide comment on a matter of public interest.

The Court decides whether the matter commented on is one of public interest. The jury, if the Court is of opinion that there is some evidence that the comment is unfair, whether it is so in fact.

NOTE 1.-“It is incorrect to say, as some writers do, that bonâ fide comments on matters of public interest come under qualified privilege” (v). The defence in such a case really is, that the words are not defamatory—that fair and proper comment is no libel (x). If such comments were privileged, in order to succeed plaintiff would have to prove malice, however false and injurious the words complained of may have been, while defendant would only have to prove that at the time he made the charges

Littler v. Thomson (1839), 2 Beav. 129; Reg. v. Dogherty (1848), 5 Cox, C. C. 348; Felkin v. Herbert (1863-4), 33 L. J. Ch. 294; 9 L. T. 635; 10 Jur. N. S. 62 ; 12 W. R. 241, 332; Reg. v. Gray (1865), 10 Cox, C. C. 184; Tichborne v. Mostyn (1867), L. R. 7 Eq. 55, n.; 17 L. T. 5; 15 W. R. 1072; In re The Cheltenham and Swansea Wagon Co. (1869), L. R. 8 Eq. 580; 38 L. J. Ch. 330; 20 L. T. 169; 17 W. R. 463 ; Tichborne v. Tichborne (1870), 39 L. J. Ch. 398 ; 22 L. T. 55; Vernon v. Vernon (1870), 40 L. J. Ch. 118; 23 L. T. 696; 19 W. R. 404; Bowden v. Russell (1877), 46 L. J. Ch. 414; 36 L. T. 177; W. N. (1877), 55; Robertson v. Labouchere (1877), 42 J.P., 710; Buenos Ayres Gas Co. v. Wilde (1880), 42 L. T. 657; 29 W. R. 43; Kitcat v. Sharp (1882), 52 L. J. Ch. 134; 48 L. T. 64; W. N.(1882) 183; 31 W. R. 227.

(v) Per Blackburn, J., in Campbell v. Spottiswoode (1863), 3 B. & S. 769. And see per Lord Esher, M. R., and Bowen, L. J., in Merivale v. Carson (1887), 20 Q. B. D. 275. (c) Per Blackburn, J., 32 L. J. Q. B. at p. 202.

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he believed that they were true, and this is certainly not the law (x).

NOTE 2.-"FAIR AND BONA FIDE COMMENT.” All comment must be fair. Although the Court has frequently approved the finding of a jury as to the unfairness of a particular comment, it has never attempted to define fair comment, indeed, it would seem to have purposely abstained from doing so on the ground that the Press in such matters should be unfettered by any hard and fast rule, and that each case should be dealt with on its merits. “Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men or the proceedings in courts of justice or in Parliament, or the publication of a scheme or a literary work. But it is always left to a jury to say whether the publication has gone beyond the limits of a fair comment on the subjectmatter discussed. A writer is not allowed to overstep these limits" (y).

All comment must be bona fide. Criticism must not be made a cloak for malice. There should be no insinuation of base and wicked motives or of improper and dishonourable conduct without some foundation in fact; and it is no defence that defendant honestly believed the charges to be true (3)

The matter commented on must be actual fact.



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(oc) See Odgers on Libel and Slander, 2nd ed. p. 33.

(y) Per Crompton, J., in Campbell v. Spottiswoode (1863), 3 B. & S. at p. 778.

(2) Cooper v. Lawson (1838), 8 A. & E. 746; 2 Jur. 919; 1 P. & D. 15; 1 W. W. & H. 601 ; Parmiter v. Coupland and another (1840), 9 L. J. Ex. 202; 4 Jur. 701 ; 6 M. & W. 105; per Cockburn, C. J., in Campbell v. Spottiswoode (1863), 32 L. J. Q. B. 185; 8 L. T. 201; 3 B. & S. 769; 3 F. & F. 421 ; 9 Jur. N. S. 1069; 11 W. R. 569; Harle v. Catherall and others (1866), 14 L. T. 801; Bryce v. Rusden (1886), 2 Times L. R. 435; Brenon v. Ridgway (1887), 3 Times L. R. 592.

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