If the language complained of does not come within the foregoing definitions and limitations, and is not therefore libelous per se, still, if untrue, it may furnish the basis for a libel suit where it has resulted in pecuniary loss or the loss of other material advantage.
"Any false words are actionable," say the courts, "by which the party has sustained special damage."
But special damages have to be proved. That is to say, in such case, excluding general damages arising from a per se libel, the character and manner of the loss and the amount in dollars and cents must be proved, and the verdict should not exceed such amount.
A single illustration will be sufficient for this class.
A newspaper falsely publishes that a man has died of the smallpox at a certain hotel. The proprietor brings a libel suit, claiming loss of custom by way of special damage. His recovery would be limited to such special damages as he could fairly show.
Libel has been defined above as "malicious defamation," etc. But it is not generally necessary that the injured complainant should prove actual malice. If the defamatory matter complained of is false, the law presumes that the publication was malicious, unless it can be shown either that it was "privileged" by statute or otherwise, or the presumption of malice is overcome by actual proof. That is to say, if the publisher claims that, although false and not privileged, the defamatory publication was not malicious, he must prove it.
Of course, if it was not false, it would not be legally malicious.
THE THREE DEFENSES
The defense to libel suits, therefore, are three, namely:
(1) To prove the published charge is true. This is called a "justification."