tendency must be probable in law and proved in fact. has and does not allege in his claim that they conveyed a libellous meaning, and show what that meaning was, failed to show any cause of action (t). Again, explanation is required if the words have not, for judicial purposes, any received ordinary meaning at all, as being foreign, provincial, or the like (u). This however is not quite the same thing as an innuendo. A libel in a foreign language might need both a translation to show the ordinary meaning of the words, and a distinct further innuendo to show that they bore a special injurious meaning. Libellous The actionable or innocent character of words depends not on the intention with which they were published, but on their actual meaning and tendency when published (v). A man is bound to know the natural effect of the language he uses. But where the plaintiff seeks to put an actionable meaning on words by which it is not obviously conveyed, he must make out that the words are capable of that meaning (which is matter of law) and that they did convey it (which is matter of fact): so that he has to convince both the Court and the jury, and will lose his cause if he fail with either (r). Words are not deemed capable of a particular meaning merely because it might by possibility be attached to them: there must be something in either the context or the circumstances that would suggest the alleged meaning to a reasonable mind (y). In scholastic language, it is not enough that the terms should be "patient" of the injurious construction; they must not only suffer it, but be fairly capable of it. (t) See 7 App. C. 748 (Lord (u) Blake Odgers 109-112. (x) Lord Blackburn, 7 App. Ca. (y) Lord Selborne, 7 App. Ca. 744; Lord Blackburn, ib. 778; Lord Bramwell, ib. 792, "I think that the defamer is he who, of many inferences, chooses a defamatory one." tion and may be libellous. The publication is no less the speaker's or writer's own Repetiact, and none the less makes him answerable, because he reports only repeats what he has heard. Libel may consist in a fair report of statements which were actually made, and on an occasion which then and there justified the original speaker in making them (); slander in the repetition of a rumour merely as a rumour, and without expressing any belief in its truth (a). "A man may wrongfully and maliciously repeat that which another person may have uttered upon a justifiable occasion," and "as great an injury may accrue from the wrongful repetition as from the first publication of slander; the first utterer may have been a person insane or of bad character. The person who repeats it gives greater weight to the slander" (b). Circumstances of this kind may count for much in assessing damages, but they count for nothing towards determining whether the defendant is liable at all. From this principle it follows, as regards spoken words, that if A. speak of Z. words actionable only with special damage, and B. repeat them, and special damage ensue from the repetition only, Z. shall have an action against B., but not against A. (c). As to the defendant's belief in the truth of the matter published or republished by him, that may affect the damages but cannot affect the liability. Good faith occurs as a material legal element only when we come to the exceptions from the general law that a man lutters defamatory matter at his own peril. (z) Purcell v. Sowler (1877) 2 C. P. Div. 215, 46 L. J. C. P. 308. (a) Watkin v. Hall (1868) L. R. 3 Q. B. 396, 37 L. J. Q. B. 125. (b) Littledale J., McPherson v. Daniels (1829) 10 B. & C. 263, 273, adopted by Blackburn J., L. R. 3 Q. B. 400. The latter part of the 4th Resolution reported in the Earl (c) See Parkins v. Scott (1862) 1 3.-Exceptions. Excep tions: fair We now have to mention the conditions which exclude, comment. if present, liability for words apparently injurious to reputation. Nothing is a libel which is a fair comment on a subject fairly open to public discussion. This is a rule of common right, not of allowance to persons in any particular situation (d); and it is not correct to speak of utterances protected by it as being privileged. A man is no more privileged to make fair comments in public on the public conduct of others than to compete fairly with them in trade, or to build on his own land so as to darken their newly-made windows. There is not a cause of action with an excuse, but no cause of action at all. "The question is not whether the article is privileged, but whether it is a libel" (e). This is settled by the leading case of Campbell v. Spottiswoode (f), confirmed by the Court of Appeal in Merivale v. Carson (g). On the other hand, the honesty of the critic's belief or motive is no defence. The right is to publish such comment as in the opinion of impartial bystanders, as represented by the jury, may fairly arise out of the matter in hand. Whatever goes beyond this, even if well meant, is libellous. The courts have, perhaps purposely, not fixed any standard of "fair criticism "(). One test very commonly applicable is the distinction between action and motive; public acts and performances may be freely censured as to (d) See per Bowen L. J., Merivale v. Carson (1887) 20 Q. B. Div. at p. 282, 58 L. J.Q. B. 548. (e) Lord Esher M. R., ib. at p. 280. (f) 3 B. & S. 769, 32 L. J. Q. B. 185 (1863). (g) (1887) 20 Q. B. Div. 275. This must be taken to overrule whatever was said to the contrary in Henwood v. Harrison (1872) L. R. 7 C. P. 606, 626, 41 L. J. C. P. 206. (h) Bowen L. J., 20 Q. B. Div. at p. 283. their merits or probable consequences, but wicked or dishonest motives must not be imputed upon mere surmise. Such imputations, even if honestly made, are wrongful, unless there is in fact good cause for them. "Where a person has done or published anything which may fairly be said to have invited comment. . . . every one has a right to make a fair and proper comment; and as long as he keeps within that limit, what he writes is not a libel; but that is not a privilege at all. . . . Honest belief may frequently be an element which the jury may take into consideration in considering whether or not an alleged libel was in excess of a fair comment; but it cannot in itself prevent the matter being libellous" (¿). The case of a criticism fair in itself being proved to be due to unfair motives in the person making it is not known to have arisen, nor is it likely to arise, and it need not be here discussed (j). On principle it seems that the motive is immaterial; for if the criticism be in itself justifiable, there is nothing to complain of; unless it can be said that comment proceeding from an indirect and dishonest intention to injure the plaintiff is not criticism at all (k). Evidence tending to show the presence of improper motives might well also tend to show that the comment was not fair in itself, and thus be material on either view; as on the other hand to say of some kinds of criticism that there is no evidence of malice is practically equivalent to saying there is no evidence of the comment being otherwise than fair (1). (i) Blackburn J., Campbell v. Spottiswoode, 32 L. J. Q. B. at p. 202; cp. Bowen L. J., 20 Q. B. Div. at p. 284. (j) See however Wason v. Walter (1868) L. R. 4 Q. B. at p. 96, 38 L. J. Q. B. 34, and Stevens v. Sampson (1879) 5 Ex. Div. 53, 49 (1) Lord Esher M. R., Merivale v. Carson, 20 Q. B. Div. 275, 281. (1) On this ground the actual What is open to What acts and conduct are open to public comment is a comment, question for the Court, but one of judicial common sense rather than of technical definition. Subject-matter of this kind may be broadly classed under two types. matter of law. Whether comment is fair, matter of fact (if libellous construc The matter may be in itself of interest to the common weal, as the conduct of persons in public offices or affairs (m), of those in authority, whether imperial or local (n), in the administration of the law, of the managers of public institutions in the affairs of those institutions, and the like. Or it may be laid open to the public by the voluntary act of the person concerned. The writer of a book offered for sale, the composer of music publicly performed, the author of a work of art publicly exhibited, the manager of a public entertainment, and all who appear as performers therein, the propounder of an invention or discovery publicly described with his consent, are all deemed to submit their work to public opinion, and must take the risks of fair criticism; which criticism, being itself a public act, is in like manner open to reply within commensurate limits. What is actually fair criticism is a question of fact, provided the words are capable of being understood in a sense beyond the fair (that is, honest) expression of an unfavourable opinion, however strong, on that which the decision in Henwood v. Harrison, (m) Including the conduct at a the conduct of public worship and whatever is incidental thereto is matter of public interest: Kelly v. Tinling (1865) L. R. 1 Q. B. 699, 35 L. J. Q. B. 940, cp. Kelly v. Sherlock (1866) L. R. 1 Q. B. at p. 689, 35 L. J. Q. B. 209. (n) Purcell v. Sowler, 2 C. P. Div. 215, 46 L. J. C. P. 308. |