1911 Encyclopædia Britannica/Libel
LIBEL and SLANDER, the terms employed in English law to denote injurious attacks upon a man’s reputation or character by words written or spoken, or by equivalent signs. In most early systems of law verbal injuries are treated as a criminal or quasi-criminal offence, the essence of the injury lying not in pecuniary loss, which may be compensated by damages, but in the personal insult which must be atoned for—a vindictive penalty coming in the place of personal revenge. By the law of the XII. Tables, the composition of scurrilous songs and gross noisy public affronts were punished by death. Minor offences of the same class seem to have found their place under the general conception of injuria, which included ultimately every form of direct personal aggression which involved contumely or insult. In the later Roman jurisprudence, which has, on this point, exercised considerable influence over modern systems of law, verbal injuries are dealt with in the edict under two heads. The first comprehended defamatory and injurious statements made in a public manner (convicium contra bonos mores). In this case the essence of the offence lay in the unwarrantable public proclamation. In such a case the truth of the statements was no justification for the unnecessarily public and insulting manner in which they had been made. The second head included defamatory statements made in private, and in this case the offence lay in the imputation itself, not in the manner of its publication. The truth was therefore a sufficient defence, for no man had a right to demand legal protection for a false reputation. Even belief in the truth was enough, because it took away the intention which was essential to the notion of injuria. The law thus aimed at giving sufficient scope for the discussion of a man’s character, while it protected him from needless insult and pain. The remedy for verbal injuries was long confined to a civil action for a money penalty, which was estimated according to the gravity of the case, and which, although vindictive in its character, doubtless included practically the element of compensation. But a new remedy was introduced with the extension of the criminal law, under which many kinds of defamation were punished with great severity. At the same time increased importance attached to the publication of defamatory books and writings, the libri or libelli famosi, from which we derive our modern use of the word libel; and under the later emperors the latter term came to be specially applied to anonymous accusations or pasquils, the dissemination of which was regarded as peculiarly dangerous, and visited with very severe punishment, whether the matter contained in them were true or false.
The earlier history of the English law of defamation is somewhat obscure. Civil actions for damages seem to have been tolerably frequent so far back as the reign of Edward I. There was no distinction drawn between words written and spoken. When no pecuniary penalty was involved such cases fell within the old jurisdiction of the ecclesiastical courts, which was only finally abolished in the 19th century. It seems, to say the least, uncertain whether any generally applicable criminal process was in use. The crime of scandalum magnatum, spreading false reports about the magnates of the realm, was established by statutes, but the first fully reported case in which libel is affirmed generally to be punishable at common law is one tried in the star chamber in the reign of James I. In that case no English authorities are cited except a previous case of the same nature before the same tribunal; the law and terminology appear to be taken directly from Roman sources, with the insertion that libels tended to a breach of the peace; and it seems probable that that not very scrupulous tribunal had simply found it convenient to adopt the very stringent Roman provisions regarding the libelli famosi without paying any regard to the Roman limitations. From that time we find both the criminal and civil remedies in full operation, and the law with regard to each at the present time may now be considered.
Civil Law.—The first important distinction encountered is that between slander and libel, between the oral and written promulgation of defamatory statements. In the former case the remedy is limited. The law will not take notice of every kind of abusive or defamatory language. It must be shown either that the plaintiff has suffered actual damage as a direct consequence of the slander, or that the imputation is of such a nature that we are entitled to infer damage as a necessary consequence. The special damage on which an action is founded for slanderous words must be of the nature of pecuniary loss. Loss of reputation or of position in society, or even illness, however clearly it may be traced to the slander, is insufficient. When we cannot prove special damage, the action for slander is only allowed upon certain strictly defined grounds. These are the imputation of a crime or misdemeanour which is punishable corporeally, e.g. by imprisonment; the imputation of a contagious or infectious disease; statements which tend to the disherison of an apparent heir (other cases of slander of title when the party is in possession requiring the allegation of special damage); the accusing a woman of unchastity (Slander of Women Act 1891); and, lastly, slanders directed against a man’s professional or business character, which tend directly to prejudice him in his trade, profession, or means of livelihood. In the latter case the words must either be directly aimed at a man in his business or official character, or they must be such as necessarily to imply unfitness for his particular office or occupation. Thus words which merely reflect generally upon the moral character of a tradesman or professional man are not actionable, but they are actionable if directed against his dealings in the course of his trade or profession. But, in the case of a merchant or trader, an allegation which affects his credit generally is enough, and it has been held that statements are actionable which affect the ability or moral characters of persons who hold offices, or exercise occupation which require a high degree of ability, or infer peculiar confidence. In every case the plaintiff must have been at the time of the slander in the actual exercise of the occupation or enjoyment of the office with reference to which the slander is supposed to have affected him.
The action for libel is not restricted in the same way as that for slander. Originally there appears to have been no essential distinction between them, but the establishment of libel as a criminal offence had probably considerable influence, and it soon became settled that written defamatory statements, or pictures and other signs which bore a defamatory meaning, implied greater malice and deliberation, and were generally fraught with greater injury than those made by word of mouth. The result has been that the action for libel is not limited to special grounds, or by the necessity of proving special damage. It may be founded on any statement which disparages a man’s private or professional character, or which tends to hold him up to hatred, contempt or ridicule. In one of the leading cases, for example, the plaintiff obtained damages because it was said of him that he was a hypocrite, and had used the cloak of religion for unworthy purposes. In another case a charge of ingratitude was held sufficient. In civil cases the libel must be published by being brought by the defendant under the notice of a third party; it has been held that it is sufficient if this has been done by gross carelessness, without deliberate intention to publish. Every person is liable to an action who is concerned in the publication of a libel, whether he be the author, printer or publisher; and the extent and manner of the publication, although not affecting the ground of the action, is a material element in estimating the damages.
It is not necessary that the defamatory character of the words or writing complained of should be apparent on their face. They may be couched in the form of an insinuation, or may derive their sting from a reference to circumstances understood by the persons to whom they are addressed. In such a case the plaintiff must make the injurious sense clear by an averment called an innuendo, and it is for the jury to say whether the words bore the meaning thus ascribed to them.
In all civil actions for slander and libel the falsity of the injurious statements is an essential element, so that the defendant is always entitled to justify his statements by their truth; but when the statements are in themselves defamatory, their falsity is presumed, and the burden of proving their truth is laid upon the defendant. There are however a large class of false defamatory statements, commonly called privileged, which are not actionable on account of the particular circumstances in which they are made. The general theory of law with regard to these cases is this. It is assumed that in every case of defamation intention is a necessary element; but in the ordinary case, when a statement is false and defamatory, the law presumes that it has been made or published with an evil intent, and will not allow this presumption to be rebutted by evidence or submitted as matter of fact to a jury. But there are certain circumstances in which the natural presumption is quite the other way. There are certain natural and proper occasions on which statements may be made which are in themselves defamatory, and which may be false, but which naturally suggest that the statements may have been made from a perfectly proper motive and with entire belief in their truth. In the cases of this kind which are recognized by law, the presumption is reversed. It lies with the plaintiff to show that the defendant was actuated by what is called express malice, by an intention to do harm, and in this case the question is not one of legal inference for the court, but a matter of fact to be decided by the jury. Although, however, the theory of the law seems to rest entirely upon natural presumption of intention, it is pretty clear that in determining the limits of privilege the courts have been almost wholly guided by considerations of public or general expediency.
In some cases the privilege is absolute, so that we cannot have an action for defamation even although we prove express malice. Thus no action of this kind can be maintained for statements made in judicial proceedings if they are in any sense relevant to the matter in hand. In the same way no statements or publications are actionable which are made in the ordinary course of parliamentary proceedings. Papers published under the authority of parliament are protected by a special act, 3 & 4 Vict. c. 9, 1840, which was passed after a decree of the law courts adverse to the privilege claimed. The reports of judicial and parliamentary proceedings stand in a somewhat different position, which has only been attained after a long and interesting conflict. The general rule now is that all reports of parliamentary or judicial proceedings are privileged in so far as they are honest and impartial. Even ex parte proceedings, in so far as they take place in public, now fall within the same rule. But if the report is garbled, or if part of it only is published, the party who is injured in consequence is entitled to maintain an action, and to have the question of malice submitted to a jury.
Both absolute and qualified privilege are given to newspaper reports under certain conditions by the Law of Libel Amendment Act 1888. The reports must, however, be published in a newspaper as defined in the Newspaper Libel and Registration Act 1881. Under this act a newspaper must be published “at intervals not exceeding twenty-six days.”
By s. 3 of the act of 1888 fair and accurate reports of judicial proceedings are absolutely privileged provided that the report is published contemporaneously with the proceedings and no blasphemous or indecent matter is contained therein. By s. 4 a limited privilege is given to fair and accurate reports (1) of the proceedings of a bona fide public meeting lawfully held for a lawful purpose and for the furtherance and discussion of any matter of public concern, even when the admission thereto is restricted; (2) of any meeting, open either to the public or to a reporter, of a vestry, town council, school board, board of guardians, board of local authority, formed or constituted under the provisions of any act of parliament, or of any committee appointed by any of these bodies; or of any meeting of any commissioners authorized to act by letters patent, act of parliament, warrant under royal sign manual, or other lawful warrant or authority, select committees of either House of parliament, justices of the peace in quarter sessions assembled for administrative or deliberative purposes; (3) of the publication of any notice or report issued for the information of the public by any government office or department, officer of state, commissioner of police or chief constable, and published at their request. But the privilege given in s. 4 does not authorize the publication of any blasphemous or indecent matter; nor is the protection available as a defence if it be proved that the reports or notices were published maliciously, in the legal sense of the word, or the defendant has been requested to insert in the newspaper in which the report was issued a reasonable letter or statement by way of contradiction or explanation, and has refused or neglected to do so. Moreover, nothing in s. 4 is to interfere with any privilege then existing, or to protect the publication of any matter not of public concern, or in cases where publication is not for the public benefit. Consequently no criminal prosecution should be commenced where the interests of the public are not affected. By the Law of Libel Amendment Act 1888, s. 8, no criminal prosecution for libel is to be commenced against any newspaper proprietor, publisher or editor unless the order of a judge at chambers has been first obtained. This protection does not cover the actual writer of the alleged libel.
In private life a large number of statements are privileged so long as they remain matters of strictly private communication. It is difficult to define the limits of private privilege without extensive reference to concrete cases; but generally it may be said that it includes all communications made in performance of a duty not merely legal but moral or social, answers to bona fide inquiries, communications made by persons in confidential relations regarding matters in which one or both are interested, and even statements made within proper limits by persons in the bona fide prosecution of their own interest. Common examples of this kind of privilege are to be found in answer to inquiries as to the character of servants or the solvency of a trader, warnings to a friend, communications between persons who are jointly interested in some matters of business. But in every case care must be taken not to exceed the limits of publication required by the occasion, or otherwise the privilege is lost. Thus defamatory statements may be privileged when made to a meeting of shareholders, but not when published to others who have no immediate concern in the business.
In a few instances in which an action cannot be maintained even by the averment of malice, the plaintiff may maintain an action by averring not only malice but also want of reasonable and probable cause. The most common instances of this kind are malicious charges made in the ordinary course of justice and malicious prosecutions. In such cases it would be contrary to public policy to punish or prevent every charge which was made from a purely malicious motive, but there is no reason for protecting accusations which are not only malicious, but destitute of all reasonable probability.
Criminal Law.—Publications which are blasphemous, immoral or seditious are frequently termed libels, and are punishable both at common law and by various statutes. The matter, however, which constitutes the offence in these publications lies beyond our present scope. Libels upon individuals may be prosecuted by criminal information or indictment, but there can be no criminal prosecution for slander. So far as concerns the definition of libel, and its limitation by the necessity of proving in certain cases express malice, there is no substantial difference between the rules which apply to criminal prosecutions and to civil actions, with the one important exception (now considerably modified) that the falsity of a libel is not in criminal law an essential element of the offence. If the matter alleged were in itself defamatory, the court would not permit inquiry into its truth. The sweeping application of this rule seems chiefly due to the indiscriminate use, in earlier cases, of a rule in Roman law which was only applicable to certain modes of publication, but has been supported by various reasons of general policy, and especially by the view that one main reason for punishing a libel was its tendency to provoke a breach of the peace.
An important dispute about the powers of the jury in cases of libel arose during the 19th century in connexion with some well-known trials for seditious libels. The point is familiar to readers of Macaulay in connexion with the trial of the seven bishops, but the cases in which it was brought most prominently forward, and which led to its final settlement, were those against Woodfall (the printer of Junius), Wilkes and others, and especially the case against Shipley, the dean of St Asaph (21 St. Tr. 925), in which the question was fought by Lord Erskine with extraordinary energy and ability. The controversy turned upon the question whether the jury were to be strictly confined to matters of fact which required to be proved by evidence, or whether in every case they were entitled to form their own opinion upon the libellous character of the publication and the intention of the author. The jury, if they pleased, had it in their power to return a general verdict of guilty or not guilty, but both in theory and practice they were subject in law to the directions of the court, and had to be informed by it as to what they were to take into consideration in determining upon their verdict. There is no difficulty about the general application of this principle in criminal trials. If the crime is one which is inferred by law from certain facts, the jury are only concerned with these facts, and must accept the construction put upon them by law. Applying these principles to the case of libel, juries were directed that it was for the court to determine whether the publication fell within the definition of libel, and whether the case was one in which malice was to be inferred by construction of law. If the case were one in which malice was inferred by law, the only facts left to the jury were the fact of publication and the meaning averred by innuendoes; they could not go into the question of intention, unless the case were one of privilege, in which express malice had to be proved. In general principle, therefore, the decisions of the court were in accordance with the ordinary principles of criminal law. But there were undoubtedly some peculiarities in the case of libel. The sense of words, the inferences to be drawn from them, and the effect which they produce are not so easily defined as gross matters of fact. They seem to belong to those cases in which the impression made upon a jury is more to be trusted than the decision of a judge. Further, owing to the mode of procedure, the defendant was often punished before the question of law was determined. But, nevertheless, the question would scarcely have been raised had the libels related merely to private matters. The real ground of dispute was the liberty to be accorded to political discussion. Had the judges taken as wide a view of privilege in discussing matters of public interest as they do now, the question could scarcely have arisen; for Erskine’s whole contention really amounted to this, that the jury were entitled to take into consideration the good or bad intent of the authors, which is precisely the question which would now be put before them in any matter which concerned the public. But at that time the notion of a special privilege attaching to political discussion had scarcely arisen, or was confined within very narrow limits, and the cause of free political discussion seemed to be more safely entrusted to juries than to courts. The question was finally settled by the Libel Act 1792, by which the jury were entitled to give a general verdict on the whole matter put in issue.
Scots Law.—In Scots law there were originally three remedies for defamation. It might be prosecuted by or with the concurrence of the lord advocate before the court of justiciary; or, secondly, a criminal remedy might be obtained in the commissary (ecclesiastical) courts, which originally dealt with the defender by public retractation or penance, but subsequently made use of fines payable to their own procurator or to the party injured, these latter being regarded as solatium to his feelings; or, lastly, an action of damages was competent before the court of session, which was strictly civil in its character and aimed at the reparation of patrimonial loss. The first remedy has fallen into disuse; the second and third (the commissary courts being now abolished) are represented by the present action for damages or solatium. Originally the action before the court of session was strictly for damages—founded, not upon the animus injuriandi, but upon culpa, and could be defended by proving the truth of the statements. But in time the court of session began to assume the original jurisdiction of the commissary courts, and entertained actions for solatium in which the animus injuriandi was a necessary element, and to which, as in Roman law, the truth was not necessarily a defence. Ultimately the two actions got very much confused. We find continual disputes as to the necessity for the animus injuriandi and the applicability of the plea of veritas convicii, which arose from the fact that the courts were not always conscious that they were dealing with two actions, to one of which these notions were applicable, and to the other not. On the introduction of the jury court, presided over by an English lawyer, it was quite natural that he, finding no very clear distinction maintained between damage and solatium, applied the English plea of truth as a justification to every case, and retained the animus injuriandi both in ordinary cases and cases of privilege in the same shape as the English conception of malice. The leading and almost only differences between the English and Scots law now are that the latter makes no essential distinction between oral and written defamation, that it practically gives an action for every case of defamation, oral or written, upon which in England a civil action might be maintained for libel, and that it possesses no criminal remedy. In consequence of the latter defect and the indiscriminate application of the plea of veritas to every case both of damages and solatium, there appears to be no remedy in Scotland even for the widest and most needless publication of offensive statements if only they are true.
American Law.—American law scarcely if at all differs from that of England. In so far indeed as the common law is concerned, they may be said to be substantially identical. The principal statutes which have altered the English criminal law are represented by equivalent legislation in most American states.
See generally W. B. Odgers, Libel and Slander; Fraser, Law of Libel and Slander.