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.