The Law of Libel
It would be useless to attempt to define, within our limit, the principles of the Law of Libel—it would be attended with fruitless results; but we may be permitted to give such an outline of the subject as may be useful for reflection and research, if not for immediate practice. Now that the old saying, “The greater truth the greater libel,” is no longer applicable even to indictments for defamation, the popular idea of what is and what is not actionable is correct, so far as it goes. It is now generally understood that a false and malicious attack upon another man’s character is in all cases illegal; that a somewhat less offensive imputation than would support an action for mere words will render its author liable in damages if it be conveyed in writing, but that the law deems all statements of this kind to be justifiable which can be shown to be true. For the ordinary intercourse of life these rules and cautions are sufficient. No one can speak ill of his neighbour with impunity, unless he is prepared to make good his words to the letter; or, at least, to prove that they were spoken without malice or on a lawful occasion. With regard to the Press, it has been proclaimed again and again from the judicial Bench, that “fair comments” in a journal or periodical are not within the Law of Libel; but, then, what is to be the test of “fairness”? It is quite possible that a journalist’s comments may be made bonâ fide and out of a regard for the public welfare, and yet may be incapable in their very nature of legal proof. In the case of Campbell v. Spottiswoode, the former obtained a verdict against the printer of the Saturday Review for an alleged calumny against himself as editor and part-proprietor of the British Standard and Ensign. The defendant’s counsel relied at the trial, and in his argument before the Court of Queen’s Bench, on the “general privilege” of all who discuss public questions without actual malice. The Lord Chief Justice and the Court decided against him, on the ground that there is no such general privilege; and that the imputation of base motives throws upon a public critic, as it would upon a private detractor, the necessity of bringing them home to the party maligned. According to this doctrine, the jury is not to be allowed to compare the comments with the evidence before the writer, and to say whether they were “fair” and justified by appearances. Nothing short of their being strictly true in fact, and proved to be so in open court, will relieve the latter of his liability.
Nevertheless, we have the authority of the Lord Chief Justice (Erle) of the Common Pleas (Turnbull v. Bird, 1861), for the principle that very strong and injurious language, if provoked and employed “for the purpose of maintaining the truth,” “without any corrupt motive,” may be innocent in the view of the law. We have the sanction of the same eminent Judge that “a man may publish defamatory matter in defence either of his private or his public rights. Every subject of this realm has a right to comment upon the acts of public men, for they concern him as such subject; but he must not make his commentary a cloak for malice. Such a commentary, however libellous, is justifiable if the defendant honestly believes that he is writing what is fair and just; but if he makes wilful misrepresentation, or misstatement that might have been avoided by ordinary care, his protection ceases.” We find it assumed by Chief Justice Erle, and stated in plain terms by Mr. Justice Willes, that there is such a thing as a “privilege of fair discussion on a matter of public interest,” though two of the learned Judges of the Queen’s Bench were at much pains to show that a right belonging to all her Majesty’s subjects cannot properly be called a “privilege.” Moreover, we have the general but most emphatic testimony of Lord Ellenborough, that where the “object” is “to correct misrepresentations of fact, to refute sophistical reasoning, to expose a vicious taste in literature, or to censure what is hostile to morality,” there can be no libel.
In a case against the Lincolnshire Chronicle, the Judge, Mr. Justice Coleridge, laid down the law as follows:
“In discussing the public conduct of a public man, a journalist might certainly use the most unceremonious freedom, and juries should not be nice in criticising the language in which the censure might be conveyed, if they could see that the motive and spirit of the whole were public and honest. On the other hand, no newspaper was justified in commenting upon the private life even of a public man; but the present appeared to be an intermediate case. The plaintiff filled a public situation, but it could hardly be said that the paragraph was merely a comment upon his conduct as alderman, neither did it relate to a strictly private matter. The most objectionable paragraph appeared to him to be that which imputed to the plaintiff ‘confused notions on the important matters of meum and tuum,’ but the jury must look at the whole, and say whether in their opinion it exceeded the bounds of fair comment upon the conduct of a person filling the position which the plaintiff filled. The jury found a verdict for the defendant.”
But, by the judicial dicta in Campbell v. Spottiswoode, no greater latitude is allowed in comments on public topics than in remarks on private affairs. Any theoretical indulgence to the former, whether it be called privilege or not, is a worthless boon if truth, or rather legal demonstration, is to be the only test of “libel or no libel” for literary critiques. As Mr. Bovill well pointed out, no privilege is wanted where truth can be successfully pleaded. On the other hand, no privilege is demanded where malice can be established against the writer, or inferred by the jury from the tone and spirit of the composition. It is where a public critic, with the best and purest intentions, has injured the good name of a public man that the question arises. The great difficulty is to render the Press harmless to individuals, and yet to leave it powerful for good.—Abridged from the Times.
With regard to the propagation of Libel, “it may be some doubt in the eye of morality, whether the purchaser of a satirical libel does not share in the guilt of the author; and whether the pleasure in reading it is not of a criminal sort, and a proof of the malignity of human nature. There would be no thieves nor stolen goods, experience tells us, if there were no receivers; and no scurrilous writings nor libellous prints would be published, to corrupt the ear or gratify the impudence of the eye, if there were no purchasers.” These sentiments are from Bayle’s Essay on Defamatory Libels; and we remember Lord Brougham to have once expressed himself in almost the identical words of Bayle, in a speech on the Newspaper Stamp Duty.