CHAPTER IX.

DEFENSES.

Privileged publications generally-Repetition-Truth— Legislative proceedings and reports thereof-Judicial proceedings-Parties to proceedings-Counsel-Witnesses-Fudges—Grand jurors—Reports of judicial proceedings-Quasi judicial proceedings-Church discipline-Seeking advice or redress other than judicially-Giving information or advice generallyAttorney and client-Master and servant-Candidates for office or employment-Insanity-Drunkenness-Infancy-Accord and satisfaction-Previous recovery-Apology-Freedom of the press-Criti

cism.

208. The actionable language referred to in the preceding chapter is to be understood as prima facie actionable only, that is to say, it is actionable when published without any legal excuse for making the publication. We have, in previous chapters (§§ 64, 65), referred to the kinds of legal excuses, and the distinction between legal excuses and defenses, and (§ 50) stated

1 To every libel there may be an implied justification from the occasion. (Weatherstone v. Hawkins, I T. R. 110.) But "there are some libels it is impossible to justify." (Pollock, Ch. B., Darby v. Ouseley, 25 Law Jour. 227, Ex.) "Whether the circumstances under which a communication is made constitute it a privileged communication or not, is a question which the court has assumed the jurisdiction to decide. But it is more a question of fact in each particular case than a question of law. The court is to consider whether the occasion is such as to make the communication one of a privileged character. That being so, it by no means follows that we can derive much aid in one case from another the circumstances of which are not exactly the same." (Maule, J., Wenman v. Ash, 13 C. B. 836; and see Darby v. Ouseley, 1 Hurl. & N. 1.)

that it is the occasion which determines of every act, and consequently of the act of publication, whether or not it admits of a legal excuse or defense. When the occasion really or apparently furnishes a legal excuse for making the publication, in that event the publication is termed a privileged publication (§ 120), or a privileged communication. Privileged publication is the better term, because the phrase privileged communication has another meaning, namely, a communication made under circumstances which either entitles or obliges the person to whom the communication is made to withhold the disclosure of the matter communicated. The term privileged communication, when hereafter employed, will be a synonym for privileged publication.

§ 209. Privileged publications are usually divided. into absolutely privileged and conditionally privileged.' And each of these publications may be again divided into such as are privileged as to the matter published, and such as are privileged as to the manner of the publication. By an absolutely privileged publication is not to be understood a publication for which the publisher is

1 As to the distinction between communications privileged from being given in evidence and privileged from being a cause of action for slander or libel, see remarks of Bushe, C. J., Black v. Holmes, I Fox & Sm. 35; see note to § 377a, post.

2 Perkins v. Mitchell, 31 Barb. 467; Warner v. Paine, 2 Sandf. 198. Privileged communications are of four kinds, to wit: where the publisher of the alleged slander acted in good faith in the discharge of a public or private duty, legal or moral, or in the prosecution of his own rights or interests; anything said or written by a master concerning the character of a servant who has been in his employment; words used in the course of a legal or judicial proceeding; and publications duly made in the ordinary mode of parliamentary proceedings. (White v. Nicholls, 3 How. U. S. Rep. 266.) Absolutely privileged communications are of two kinds: (1.) proceedings in courts of justice; (2.) memorials and petitions to the legislature. (Cook v. Hill, 3 Sandf. 341.) Courts are not inclined to extend the doctrine of absolutely privileged. communications. (Id.) A conditionally privileged publication must be made “in good faith, believing the statements it contains to be true, or having probable cause to believe them to be true." If there was no probable cause of the communication, the law implies that it was made with malice. If, however, it appears that there was probable cause, the communication is privileged, no matter how much actual malice dictated it. (Id.)

in no wise responsible; but it means a publication in respect of which, by reason of the occasion upon which it is made, no remedy can be had in a civil action of slander or libel. A conditionally privileged publication is a publication made on an occasion which furnishes a prima facie legal excuse for the making of it; and which is privileged, unless some additional fact is shown which so alters the character of the occasion as to prevent it furnishing a legal excuse. The additional fact which, in the majority of cases, is required to be shown to destroy this conditional privilege is malice, meaning bad intent in the publisher, i. e., an intent to injure the person whom or whose affairs the language concerns; and, therefore, by a conditionally privileged publication. is very generally understood one which rebuts the presumption of malice, meaning absence of legal excuse, which, in cases where no legal excuse is apparent, arises from the mere fact of publication. And, therefore, it has been said: "Instead of the expression 'privileged communication,' it is more correct to say that the communication was made on an occasion which rebuts the presumption of malice." The proper meaning of a privileged communication is only this: that the occasion

"In general, an action lies for the malicious publication of statements which are false in fact and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his [the publisher's] own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice which the law draws from unauthorized communications, and affords a qualified defense depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society, and the law has not restricted the right to make them within any narrow limits." (Parke, B., Toogood v. Spyring, I Cr. M. & R. 181; 4 Tyrw. 582; and to the like effect, see Coxhead v. Richards, 2 C. B. 569; Blackham v. Pugh, 2 C. B. 611; Bennett v. Deacon, 2 C. B. 628; Taylor v. Hawkins, 16 Q. B. [Adol. & El. N. S.] 308; Kine v. Sewell, 3 M. & W. 297; Swan v. Tappan, 5 Cush. 104.)

Erle, J., Gilpin v. Fowler, 9 Ex. 615.

on which the communication was made rebuts the inference prima facie arising from a statement prejudicial to the character of the plaintiff, and puts it upon him to prove that there was malice in fact, that the defendant. was actuated by motives of personal spite or ill-will, independent of the occasion on which the communication was made. The description of cases recognized as privileged communications must be understood as exceptions to the rule (that every defamatory publication implies malice), and as being founded upon some apparently recognized obligation or motive, legal, moral, or social, which may fairly be presumed to have led to the publication, and, therefore, prima facie relieves it from the just implication from which the general rule of law is deduced. The rule of evidence as to such cases is, accordingly, so far changed as to impose it on the plaintiff to remove those presumptions flowing from the seeming obligations and situations of the parties, and to require of him to bring home to the defendant the existence of malice as the true motive of his conduct. And it has been said: Few rules of law are of greater practical importance than that which requires proof of express malice, where the words are spoken under circumstances which make the communication privileged. The malice

1 Wright v. Woodgate, 2 Cr. M. & R. 573. Where the writer is acting on any duty, legal or moral, towards the person to whom he writes, or where he has by his situation to protect the interest of that person, that which he writes under such circumstances is a privileged communication, and no action will lie for what is thus written, unless the writer be actuated by malice. (Cockayne v. Hodgkisson, 5 Car. & P. 543.)

Defendant, the teacher of a high school, undertook, at request of the school committee, to examine candidates for admission to said school, as to their qualification. Plaintiff was a candidate for admission and submitted to examination. Defendant reported him to the school committee as disqualified. Complaint alleged that the report was made maliciously and was false in fact. A demurrer to the complaint as not containing a cause of action, was overruled. (Hammond v. Hussey, 51 N. H. 40.) The demurrer admitted the falsehood and malice.

2 White v. Nicholls, 3 How. U. S. Rep. 266.

required to deprive communications of this sort of the protection arising out of the occasion of the speaking of the words, must be such as to induce the court, or any reasonable person, to draw the inference that the occasion has been taken advantage of to give utterance to an unfounded charge. Privileged communications comprehend all statements made bona fide in performance of a duty, or with a fair and reasonable purpose of protecting the interest of the person making them, or the interest of the person to whom they are made.3 A communication made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged, if made to a person having a corresponding interest or duty, although it contain criminatory matter, which, without this privilege, would be slanderous and actionable. But in this definition of a privileged communication, the word duty "cannot be confined to legal duties, which may be enforced by indictment, action, or mandamus, but must include moral and social duties of imperfect obligation." But, as was said by Creswell, J.:5 "It is not easy very precisely to define what is, and what is not, a privileged communication." We venture, with much hesitation, to suggest the rule as to privilege to be: one may publish, by speech or writing, whatever he honestly believes is essential to the protection of his own rights, or to the rights of another, provided the publication be not unnecessarily made to others than to those persons whom

Manby v. Witt, 18 C. B. 544.

* Somerville v. Hawkins, 10 C. B. 583; 15 Jur. 450.

3 Pattison v. Jones, 8 B. & C. 578. Where there are several distinct [divisible, 145] charges, some privileged and some not privileged, those not privileged are not justified by the charges that are privileged. (Clarke v. Roe, Ir. Rep. 4 Com. Law, 1). One charge may be justified. (§ 212, post.)

Harrison v. Bush, 5 El. & Bl. 349.

Wenman v. Ash, 13 Com. B. 844.