measure of immunity extends to reports of parliamentary debates, notwithstanding that proceedings in Parliament are technically not public, and, still later, that it extends to fair reports of the quasi-judicial proceedings of a body established for public purposes, and invested with quasijudicial authority for effecting those purposes (u). In the case of judicial proceedings it is immaterial whether they are preliminary or final, and, according to the prevailing modern opinion, whether contested or ex parte, and also whether the Court actually has jurisdiction or not, provided that it is acting in an apparently regular manner (x). The report need not be a report of the whole proceedings, provided it gives a fair and substantially complete account of the case but whether it does give such an account seems to be a pure question of fact, even if the part which is separately reported be a judgment purporting to state the facts (y). The report must not in any case be partial to the extent of misrepresenting the judgment (~). It may be libellous to publish even a correct extract from a register of judgments in such a way as to suggest that a judgment is outstanding when it is in fact satisfied (a). By statute

66

a fair and accurate report in any newspaper of proceedings publicly heard before any court exercising judicial

Q. B. 73, 38 L. J. Q. B. 34. And editorial comments on a debate published by the same newspaper which publishes the report are entitled to the benefit of the general rule as to fair comment on public affairs: ib. Cp. the German Federal Constitution, arts. 22, 30.

(u) Allbutt v. General Council of Medical Education (1889) 23 Q. B. Div. 400, 58 L. J. Q. B. 606.

(x) Usill v. Hales (1878) 3 C. P. D. 319, 47 L. J. C. P. 323, where

the proceeding reported was an application to a police magistrate, who, after hearing the facts stated, declined to act on the ground of want of jurisdiction: Lewis v. Levy (1858) E. B. & E. 537, 27 L. J. Q. B. 282.

(y) Macdougall v. Knight (1889) 14 App. Ca. 194, 58 L. J. Q. B. 537.

(z) Hayward & Co. v. Hayward & Son (1886) 34 Ch. D. 198, 56 L. J. Ch. 287.

(a) Williams v. Smith (1888) 22 Q. B. D. 134, 58 L. J. Q. B. 21.

Volunteered reports.

authority" is, " if published contemporaneously with such proceedings," privileged (b). The rule does not extend to justify the reproduction of matter in itself obscene, or otherwise unfit for general publication (c), or of proceedings of which the publication is forbidden by the Court in which they took place.

An ordinary newspaper report furnished by a regular reporter is all but conclusively presumed, if in fact fair and substantially correct, to have been published in good faith; but an outsider who sends to a public print even a fair report of judicial proceedings containing personal imputations invites the question whether he sent it honestly for purposes of information, or from a motive of personal hostility; if the latter is found to be the fact, he is liable to an action (d).

Newspaper reports of public meetings and of meetings of vestries, town councils, and other local authorities, and of their committees, of royal or parliamentary commissions, and of select committees, are privileged under the Law of Libel Amendment Act, 1888). A public meeting is for this purpose "any meeting bona fide and lawfully held for a lawful purpose, and for the furtherance or discussion of any matter of public concern, whether the admission thereto be general or restricted." The defendant must not have refused on request to insert in the same newspaper a reasonable contradiction or explanation. Moreover “the publication of any matter not of public concern, and the

(b) 51 & 52 Vict. c. 64, s. 3. The earlier cases are still material to show what is a fair and accurate report.

(c) Steele v. Brannan (1872) L. R. 7 C. P. 261 (a criminal case); 51 & 52 Vict. c. 64, s. 3.

(d) Stevens v. Sampson (1879) 5 Ex. Div. 53, 49 L. J. Q. B. 120.

(e) 51 & 52 Vict. c. 64, s. 4. The ill-drawn enactment of 1881 for the same purpose, 44 & 45 Vict. c. 61, s. 2, is repealed by sect. 2 of this Act.

publication of which is not for the public benefit," is not protected (ƒ).

In the case of privileged communications of a confi- Excess of privilege. dential kind, the failure to use ordinary means of ensuring privacy-as if the matter is sent on a post-card instead of in a sealed letter, or telegraphed without evident necessity -will destroy the privilege; either as evidence of malice, or because it constitutes a publication to persons in respect of whom there was not any privilege at all. The latter view seems on principle the better one (g). It would also seem that if a communication intended to be made on a privileged occasion is by the sender's negligence (as by putting letters in wrong envelopes) delivered to a person who is a stranger to that occasion, the sender has not any benefit of privilege. The contrary has been decided by a Divisional Court (h), but there is reason to think that the decision is by no means universally accepted in the profession as good law.

belief is

reasonable

Where the existence of a privileged occasion is estab- Honest lished, we have seen that the plaintiff must give affirmative not necesproof of malice, that is, a dishonest personal ill-will, in sarily order to succeed. It is not for the defendant to prove belief. that his belief was founded on reasonable grounds. To constitute malice there must be something more than the absence of reasonable ground for belief in the matter communicated. That may be evidence of reckless disregard

(f) Ibid. In a civil action on whom is the burden of proof as to this? See Blake Odgers, 381-3, on the repealed section of 1881, where however this qualification was by way of condition and not by way of proviso.

(g) Williamson v. Freer (1874) L. R. 9 C. P. 393, 43 L. J. C. P. 161.

(h) Tompson v. Dashwood (1883) 11 Q. B. D. 43, 52 L. J. Q. B. 425.

Power of jury in assessing damages.

Special procedure in actions

for news

paper libels.

Limits of

interroga

tories in

action for

libel.

of truth, but is not always even such evidence. A man may be honest and yet unreasonably credulous; or it may be proper for him to communicate reports or suspicions which he himself does not believe. In either case he is within the protection of the rule (i). It has been found difficult to impress this distinction upon juries, and the involved language of the authorities about "implied" and "express" malice has, no doubt, added to the difficulty. The result is that the power of the Court to withhold a case from the jury on the ground of a total want of evidence has on this point been carried very far (). In theory, however, the relation of the Court to the jury is the same as in other questions of "mixed fact and law." Similar difficulties have been felt in the law of Negligence, as we shall see under that head.

In assessing damages the jury " are entitled to look at the whole conduct of the defendant from the time the libel was published down to the time they gave their verdiet. They may consider what his conduct has been before action, after action, and in Court during the trial." And the verdict will not be set aside on the ground of the damages being excessive, unless the Court thinks the amount such as no twelve men could reasonably have given (k).

Lord Campbell's Act (6 & 7 Vict. c. 96, ss. 1, 2), contains special provisions as to proving the offer of an apology in mitigation of damages in actions for defamation, and payment into court together with apology in actions for libel in a public print (7).

Where money has been paid into Court in an action for] libel, the plaintiff is not entitled to interrogate the defendant as to the sources of his information or the means used to verify it (m).

(i) Clark v. Molyneux (1877) 3 Q. B. Div. 237, 47 L. J. Q. B. 230, per Bramwell L. J. at p. 244; per Brett L. J. at pp. 247-8; per Cotton L. J. at p. 249.

(1) Laughton v. Bishop of Sodor and Man (1872) L. R. 4 P. C. 495, 42 L. J. P. C. 11, and authorities there cited; Spill v. Maule (1869) Ex. Ch. L. R. 4 Ex. 232, 38 L. J. Ex. 138.

(k) Praed v. Graham (1889) 24 Q. B. Div. 53, 55.

(1) The Rules of Court of 1875 had the effect of enlarging and so far superseding the latter provision; but see now Order XXII. r. 1, and "The Annual Practice" thereon. See also 51 & 52 Vict. c. 64, s. 6.

(m) Parnell v. Walter (1890) 24 Q. B. D. 441.

CHAPTER VIII.

WRONGS OF FRAUD AND MALICE.

247

I. Deceit.

of the

In the foregoing chapters we dealt with wrongs affecting Nature the so-called primary rights to security for a man's person, wrong. to the enjoyment of the society and obedience of his family, and to his reputation and good name. In these cases, exceptional conditions excepted, the knowledge or state of mind of the person violating the right is not material for determining his legal responsibility. This is so even in the law of defamation, as we have just seen, the artificial use of the word "malice" notwithstanding. We now come to a kind of wrongs in which either a' positive wrongful intention, or such ignorance or indifference as amounts to guilty recklessness (in Roman terms either dolus or culpa lata) is a necessary element; so that liability is founded not in an absolute right of the plaintiff, but in the unrighteousness of the defendant.

law and

The wrong called Deceit consists in leading a man into Concurrent jurisdamage by wilfully or recklessly causing him to believe diction of and act on a falsehood. It is a cause of action by the common common law (the action being an action on the case equity. founded on the ancient writ of deceit (a), which had a much narrower scope): and it has likewise been dealt with by courts of equity under the general jurisdiction of

(a) F. N. B. 95 E. sqq.