CHAPTER X. DEFAMATION.
No man may disparage the reputation of another. Every one has a right to have his good name maintained, unimpaired. Words which produce any perceptible injury to the reputation of another are called defamatory: and if they are false they are actionable. False and malicious defamatory words, if in printing, writing, pictures or signs, and published, constitute a libel; if spoken, a slander. A caricature may be a libel; so may a chalk-mark on a wall, a statue, hieroglyphics, a rebus, an anagram or an allegory, or even ironical praise.
Defamatory matter, whether published in the form of libel or slander, is actionable when it imputes a criminal offence (or a contagious or infectious disorder) or affects the plaintiff injuriously in his lawful profession, trade or business, or in the discharge of a public office, or generally when it is false and malicious, and its publication causes damage to the plaintiff either in law or in fact. Defamatory matter, the publication of which tends to degrade or disparage the plaintiff, or which renders him ridiculous, or charges him with want of honesty, humanity or veracity, or is intended to impair his enjoyment of society, fortune or comfort, is actionable as libel, but not as slander, unless special damage be proved ([340]). |130|
The person defamed by a libel has not only a civil remedy to recover damages but he may also, in some cases, proceed criminally by way of information or indictment and have the defamer punished as an offender against the state. If he proceeds by information he must in general waive his right to bring a civil action; but he may sue for damages after the offender has been convicted upon an indictment. An action for libel must be brought within six years; and an action for slander within two years, unless the words spoken are actionable only by reason of special damage, in which case the action may be brought at any time within six years.
Whenever a special kind of knowledge is essential to the proper conduct of a particular profession, denying that a man possesses such special knowledge will be actionable if he belongs to that particular profession, but not otherwise. Thus to say of a physician, “Thou art a drunken fool and an ass. Thou wert never a scholar, nor even able to speak like a scholar,” is actionable, because no man can be a good physician unless he be a scholar ([341]). Although one may with impunity say of a Justice of the Peace, “He is a fool, an ass and a beetle headed justice” ([342]). So to say, of a midwife, “Many have perished for her want of skill;” or, “She is an ignorant woman, and of small practice and very unfortunate in her way; there are few she goes to but lie desperately ill, or die under her hands;” is actionable ([343]). Or of an apothecary, “He is not an apothecary; he has not passed any examination. Several have died that he had attended, and there have been inquests held upon them” ([344]). Although one may safely say of a Justice of the Peace, “He is a blood sucker, and sucketh blood.” |131|
It is actionable to say of a person in his professional character, “He is no doctor; he bought his diploma for $50” ([345]). Any words imputing to a practising medical man, misconduct or incapacity in the discharge of his professional duties, are actionable per se. Thus, it is actionable, without proof of special damage, to accuse one of having caused the death of any patient through his ignorance or culpable negligence, as to say of a physician, “He killed my child by giving it too much calomel,” or, “He hath killed J. S. with physic, which physic was a pill;” or, “He was the death of J. P.; he has killed his patient with physic; it is a world of blood he has to answer for in this town through his ignorance; he did kill a woman and two children at Southampton; he did kill J. P. at Petersfield;” or, as an American did, “Dr. S. killed my children; he gave them teaspoonful doses of calomel, and it killed them. They did not live long after they took it. They died right off the same day” ([346]).
So it is to say of an apothecary, “He poisoned my uncle; I will have him digged up again, and hang him,” or, “He killed my child; it was the saline injection that did it;” or, “I was told he had given my child too much mercury, and poisoned it; otherwise, it would have got well” ([347]).
So it is actionable to say of a surgeon and accoucheur, “He is a bad character; none of the medical men here will meet him.” As such words impart the want of a necessary qualification for a surgeon in the ordinary discharge of his professional duties; or, “Dr. Tweedie has honorably and faithfully discharged his duties to his |132| medical brethren in refusing to act or consult with Ramadge (a physician), and we hope every one else will do the same” ([348]). Or to call a practising medical man “a quack,” “a quacksalver,” “an empiric,” or “a mountebank,” or to say of him, “Thou gavest physic which thou knewest to be contrary to the disease,” or “Thou art no good subject, for thou poisonedst A. F.’s wound, to get more money of him.” Under the New York Statutes, a homœopathic physician may maintain an action for being called a quack ([349]). And it seems that an action will lie, without averment of special damages, for slander imputing to a physician, that he has taken advantage of his character as a physician to abuse the confidence reposed in him, and commit acts of criminal conversation with a patient ([350]).
In the case of libel, any words will be presumed defamatory which expose the plaintiff to hatred, contempt, ridicule or obloquy, which tend to injure him in his professional trade, or cause him to be shunned or avoided by his neighbours. Thus, to advertise falsely that certain quack medicines, “consumption pills,” were prepared by a physician of eminence, is a libel upon such physician ([351]).
Whenever a medical man brings forward some new method of treatment and advertises it largely as the best, or only cure for some particular disease, or for all diseases at once, he may be said to invite public attention, and a newspaper writer is justified in warning the public against such advertisers, and in exposing the absurdity of their professions, provided he does so fairly and with reasonable judgment ([352]). |133| A medical man, who had obtained a diploma and the degree of M.D., from an American College, advertised in England most extensively a new and infallible cure for consumption. The Pall Mall Gazette published a leading article on these advertisements, in which they called the advertiser a quack and an impostor, and compared him to scoundrels “who pass bad coin.” This was considered as overstepping the limits of fair criticism, and a verdict was given for the plaintiff, with damages, one farthing ([353]). So where the editor of the Lancet attacked the editor of a rival paper, The London Medical and Physical Journal, by rancorous aspersions on his private character, not fairly called for by what the plaintiff had done as an editor, the plaintiff recovered a verdict of £5 ([354]).