Libel

A libel may be regarded either as a private injury or a public offence.

As a private injury, it consists in the publication, either by writing, printing, engraving, or otherwise rendering permanent (whereby it is distinguished from slander, which is verbal defamation only) any malicious and defamatory matter which tends to injure, degrade, or make odious or ridiculous the person respecting whom it is published. For this injury the person injured may proceed against his libeller, either by prosecution and indictment, on the ground that such publications tend to breaches of the peace, or by action to recover damages. Formerly the legal inquiry was regarded as the same whether the publication was true or false—indeed, it had become an adage “the greater the truth the greater the libel.” But by the statute 6 & 7 Vic., c. 96, it is provided, that on information or indictment the defendant may allege the truth of the matter charged, and that it was for the public benefit that it should be published; subject, however, to this condition, that if he should be convicted, such allegation might be regarded as an aggravation of the offence. He may also show that the publication was without his knowledge, and did not arise from want of care on his part.

Moreover, in all such indictments or informations for libel, if judgment be given for the defendant he will be entitled to the costs he has been put to in defending himself; but if the verdict be for the prosecutor upon the special plea, the prosecutor will be entitled to the cost occasioned by such plea. Lastly, it is provided that every person convicted of publishing a defamatory libel, knowing it to be false, shall be liable to two years’ imprisonment, and such fine as the Court may award; or if it be not found that he knew it to be false, to imprisonment for any period not exceeding one year.

As regards actions for libel, it was always competent for a defendant to set up as a defence that the libel was true; and the above-mentioned statute affords further protection to the editors and proprietors of periodical publications by enacting that, in an action for libel, although the defendant is unable to allege the truth of the libel, it shall be competent for him to plead that it was inserted without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, he had inserted a full apology for it in the same publication or any other selected by the plaintiff; and thereupon he shall be at liberty to pay into Court a sum of money by way of amends for the injury sustained. It is also competent for the defendant, after giving plaintiff notice of his intention to do so, to give evidence in mitigation of damages that he made or offered an apology to the plaintiff before the commencement of the action, or as soon afterwards as he had the opportunity of doing it.

Irrespective of any protection afforded by statute, there are many publications which are protected from action or indictment on account of the circumstances under which they are published. These are termed privileged commvmications, and the defendant may obtain the benefit of their being of this character without pleading it specially, under the general plea of not guilty. Of this kind are all communications or publications made bona fide upon any subject in which the party communicating or publishing it has an interest or a duty to-wards the person he communicates with. Thus, in private matters communications respecting the character of a servant, or the solvency of a trader, are privileged; and so in public matters, the publication of a fair reporjb of the proceedings of a Court of Justice is protected; hut if it contains other libellous matters, such as comments reflecting upon the parties whose names appear in it, it loses the privilege which it would otherwise possess.

There is an important distinction between the publication of the proceedings in a Court of Justice and those in a public meeting; for while the former is privileged the latter is not. Libels which may subject the authors and publishers to criminal punishment are of several kinds, such as blasphemous, immoral, seditious and personal libels. All blasphemies against God or the Christian religion, or the Holy Scriptures, are indictable at common law, that is, by the custom of the realm. So is any publication which is contrary to public morals, decency, and order; and by 20 & 21 Vic., c. 83, a summary power is given to the police, under the direction of the magistrates, to search for obscene books, pictures, and other articles, and punishing the persons in whose possession they are found.

As to seditious libels, it is the undoubted right of every member of the community to publish his own opinions on all subjects of common interest, and so long as he executes this inestimable privilege candidly, honestly, and sincerely, with a view to benefit society, he is not amenable as a criminal. Where the boundary is overstepped, and the limit abused for want of gratification or private malice—where public mischief is the object of the act, the publication is noxious and injurious to society, and is therefore criminal.

Personal libels consist of malicious defamation, tending either to blacken the memory of one who is dead or the reputation of one that is alive, and expose him to public hatred, contempt or ridicule. By the statute 6 & 7 Vic., c. 96, any person convicted of maliciously publishing any defamatory libel, knowing the same to be false, may be imprisoned in the common jail for any term not exceeding two years, and shall be fined as the Court shall think fit; and if the guilty knowledge be not proved shall be liable to tine or imprisonment, or both; such imprisonment not to exceed the term of one year. By the same statute, if any person shall publish, or threaten to publish, or shall offer to abstain from printing or publishing, or to prevent the printing or publishing of any libel, matter, or thing, touching any other person with intent to extort money or any valuable thing, or to obtain any appointment or benefit, such person shall be liable to be imprisoned, with or without hard labour, for any term not exceeding three years.

Upon any prosecution for libel, the defendant may show that the publication was merely accidental and without his knowledge. So he may show the libel was published under circumstances which the law recognises as those of justification or excuse. By the 6th & 7th Vic., c 96, as we have said, he may plead that the alleged libel is true; and, further, that it was for the public benefit that it should be published; but that notwithstanding that plea, the defendant should be convicted, it is competent for the Court in pronouncing sentence, to consider whether the guilt of the defendant is aggravated or mitigated by such plea, and by the evidence given to prove it. This provision, however, does not apply to seditious libels.

The defendant may also prove that the publication complained of was made without his authority, consent, or knowledge, and did not arise from want of due caution on his part. Upon conviction on any indictment or information by a private prosecution for libel, if judgment be given for the defendant, he will be entitled to receive the costs he has been put to by the prosecutor. The question of libel or no libel is one for the jury; but the Court or Judge is required to give his or their opinion upon it to the jury, according to their discretion, which the jury can accept or reject, as they shall feel themselves bound in conscience to do.