John William Salmond.

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deals with false and defamatory statements of fact, not with
defamatory comment on proved or admitted facts. A com-
ment may be published to all the world ; a specific charge of
misconduct must be published only to the persons in authority
over the offender.

§ 144, — Faip Comment.

1. A statement is privileged if it is a fair comment on a Fair
matter which is of public interest or is submitted to public "^o™™^"^ ■
criticism. ^

2. Comment or criticism must be carefully distinguished Distin-
from a statement of fact. The former is privileged, if if fj^atements ™
relates to a matter which is of public interest ; the latter is of fact,
unprivileged and actionable, even though the facts so stated

would, if true, have possessed the greatest public interest and
importance. " The distinction," says the Privy Council in Davis
V. Shepstone.^ "cannot be too clearly borne in mind between
comment or criticism and allegations of fact, such as that
disgraceful acts have been committed, or discreditable lan-
guage used. It is one thing to comment upon or criticise eyen
with severity the acknowledged or proved acts of a public man,
and quite another to assert that he has been guilty of par- •

ticular acts of misconduct." So also in the Irish case of Lefroy

5 Harrison v. Bush (1855) 5 E. & B. 344.
» Purcell V. Sowler (1878) 2 C.P.D. 215.

'^Henwoodv. Harrison (1872) L.R. 7 C.P. 606 ; Thomas v. Bradbury
Agnew & Co. (1906) 2 K.B. 627. ' (1886) 11 A.C. p. 190.



Chap. XIV.

V. Burnside ^ it is said : " That a fair and bona fide comment on
a matter of public interest is an excuse of what would otherwise
be a defamatory publication is admitted. The very statement,
however, of this rule assumes the matter of fact commented
upon to be somehow or other ascertained. It does not mean
that a man may invent facts, and comment on the facts so
invented, in what would be a fair and bona fide manner on the
supposition that the facts were true."

Comment or criticism is essentially a statement of opinion
as to the estimate to be formed of a man's character or actions.
Being therefore a mere matter of opinion, and so incapable of
definite proof, he who expresses it is not called upon by the law
to justify it as being true, but is privileged to express it, even
though others disagree with it, provided that it is fair and
honest. Thus it is comment to say that a certain act done by
the plaintiff is unwise or absurd ; but it is an unprivileged
statement of fact to sav that he committed the act so criticised.

3. Notwithstanoing the distinction thus drawn between
comment and matter of fact, it would seem not to be true that

of fact

as incidental a defamatory statement of fact can in no circumstances be
comment covered by a plea of fair comment. The question is difficult
and uncertain, but the rule may perhaps be formulated in
some such way as this : That if an actual matter of fact is of
such a nature as to be open to comment, and is fairl3r com-
mented upon, the privilege attaching to this comment will in-
clude at the same time any subsidiary statements of fact, which
are honestly and reasonably, even though mistakenly, made by
way of inference from the principal fact. Thus in Lefroy v.
Burnside^ it was said by Pallas, C.B. : " It was contended
during the argument that the statement of one fact cannot be
excused as fair comment upon another fact. That proposition
is in my opinion far too wide, and I cannot concur in it : but I
think that when a matter of fact is to be excused as comment
upon another fact, the fact alleged and sought to be excused
must be a reasonable inference from the facts alleged, and upon
which it is a comment. Whether the facts averred be capable
of being reasonably inferred from such othe^ facts is a matter

3 (1879) 4L.R. Ir. p. 565.
* (1879) 4 L.R. Ir. p. 566.

Sec. 144. FAIR COMMENT. 409

of law." For example, if the critic of a novel asserts on the
ground of a remarkable coincidence, that the plot has been
borrowed from that of another novel, the statement is one of
fact, yet presumably it would be covered by a plea of fair
comment and the critic would not be bound to plead justi-
fication. ^

4. The right of pri\'ileged comment is limited to certain \\'hat
matters. The right of unprivileged comment is universal ; |^g ^g^.
there is full liberty to criticise all men and things, public and mented on.
private, provided that the criticism is true. But it is only in
a limited class of cases that there is any right to express one's
own opinion honestly and fearlessly, regardless of whether
others can be induced to agree with it or not. The cases in
which this right of privileged comment exists may be divided
into two classes : namely, (1) matters of public interest, and
(2) matters which, although of no public interest, have been
submitted to criticism by the persons concerned.

(a) Matters of public interest : for example, the administra- Matters of
tion of justice, the affairs of parliament, the conduct of the Pj^gj-est.
executive government and of public servants, the mode in
which local authorities and other public bodies perform their
functions, the management of public hospitals and other
public institutions, the conduct of public worship in the
Church of England. It makes no difference that the pubKc
interest of the matter in question is limited to a particular
locality, instead of extending throughout the realm. That
which is primarily of pubHc interest to the citizens of Man-
•chester-is indirectly of public interest to all England. * '

5 See Joynt v. Cycle Trade Publishing Co. (1904) 2 K.B. p. 297 per
Williams, L.J. ; Dakhyl v. Labouchere (1907) 23 T.L.R. p. Zm per
Lord Atkinson.

« Purcell V. Sowler (1877) 2 C.P.D. p. 218 ; Cox v. Feeney (1863)
4 F. & F. p. 20.

' The following are examples of matters of public interest : Hen-
wood V. Harrison (1872) L.R. 7 C.P. 606 (report of Board of Admiralty
on the plans of a naval architect) ; Wason v. Walter (1868) L.R. 4 Q.B.
73 (petition to Parliament for removal of a judge) ; Davis v. Duncan
(1874) L.R. 9 C.P. 396 (conduct of a meeting assembled to hear election
address) ; Hibbins v. Lee (1864) 4 F. & F. 243 (conduct of magistrates) ;
Purcell v. Sowler (1878) 2 C.P.D. 215 (administration of the poor law) ;
Kelly v. Tinting (1865) L.R. 1 Q.B. 699 (conduct of public worship).



Chap. XIV.

to public

on moral |

(b) Matters submitted to public criticism by the -persons
concerned. He who voluntarily gives up his right of privacy
by submitting himself or his deeds to public scrutiny and
judgment must submit to the exercise of a right of public
comment. This right, therefore, includes books and every
form of published literature, works of art publicly exhibited,
and public musical or dramatic performances. So also with
any form of appeal to the public, such as advertisements,
circulars, or public speeches. ^

5. A man's moral character is not a permissible subject of
adverse comment, and this is so even though the person so
attacked occupies some public po.sition which makes his
character a matter of public interest. He who says or suggests
that a person is dishonest, corrupt, immoral, untruthful,
inspired by base and sordid motives, cannot defend himself
by a plea of fair comment, but must justify his accusation by
proving it to be true. It is privileged fair comment to accuse
a man of folly, but not to accuse him of vice ; of want of
dignity, but not of want of honesty ; of incapacity, but not of
corruption ; of bad taste, but not of mendacity. This im-
portant limitation upon the right of criticism was established
by the decision of the Court of Queen's Bench in Campbell
v. Spottiswoode^ in which it was held actionable to suggest,
however honestly, that the editor of a religious magazine, in
advocating a scheme for missions to the heathen, was in reality
an impostor inspired by motives of pecuniary gain. " I do
not assent," says Cockburn, C.J., in his charge to the jury, i*
" that .... because a man is a public man, you are
entitled, not only to point out the want of judgment, the want

In South Hetton Coal Co. v. N. Eastern News Association (1894) 1 Q.B.
133, it was held by the Court of Appeal that the sanitary condition of the
cottages provided by a colliery company for its workmen was a matter
of public interest, comment on which was privileged. See also^/oyjai
V. Cycle Trade Publishing Co. (1904) 2 K.B. 292.

8 Campbell v;. Spottiswoode (1863) 3 B. & S. 769; Merivale v.
Carson (1887) 20 O.B.D. 275 ; McQuire v. Western Morning News (1903)
2 K.B. 100 ; Thomas v. Bradbury Agnew &■ Co. (1906) 2 K.B. 627.

« (1863) 3 B. & S. 769. See also Parmiter v. Coupland (1840)^6
M. & W. 105, 55 R.R. 529 : Joynt v. Cycle Trade Publishing Co. (1904)
2 K.B. 292.

1 » 32 L.J.Q.B. p. 192.

Sec. 144. FAIR COMMENT. 411

of discretion, the want of wisdom in his conduct, but that you
may ascribe to him corrupt, dishonest, and wicked motives."
" A writer in a public paper," says the same judge, ^^ " may
comment on the conduct of public men in the strongest terms ;
but if he imputes dishonesty, he must be prepared to justify.

It seems to me that a line must be drawn between

hostile criticism on a man's public conduct and the motives by
which that conduct may be supposed to be influenced ; and
that you have no right to impute to a man in his conduct as
a citizen — even though it be open to ridicule or disapprobation
— base, sordid, dishonest, and wicked motives, unless there is
so much groxmd for the imputation that a jury shall be of
opinion, not only that you may have honestly entertained
some mistaken belief upon the subject, but that your belief
is well founded and not without cause."

Some doubt, however, as to the real nature and scope of
this limitation of the right of comment is created by certain
observations in the recent case of Dakhyl v. Lahouchere ^ ^ in
the House of Lords. It is suggested in this case that an attack
upon a person's character may be covered by a plea of fair
comment if it is made by way of a reasonable inference from
some facts which are properly the subject of comment. " A
personal attack," says I^ord Atkinson, ^^ "may form part of
a fair comment upon given facts truly stated, if it be warranted
by those facts ; in other words, in my view, if it be a reason-
able inference from those facts." ^*

6. The comment must be fair, otherwise it will be action- Comment
able as unprivileged. This does not mean that the comment ^^^ ^
must be true ; true comment needs no privilege, any more
than any other true statement. " The jury," says Collins,
M.R., in McQuire v. Western Morning News,''-^ "have no
right to substitute their own opinion of the literary merits of
the work for that of the critic, or try the fairness of the criticism
by any such standard. Fair, therefore, in this collocation cer-

n 32 L.J.Q.B, pp. 196, 199.

12 (1907) 23 T.L.R. 364. ^' 23 T.L.R. p. 364.

' * As to the protection thus afforded by fair comment to statements
which are made byway of reasonable inference but are not in themselves
permissible comment, see supra p. 408,

IS (1903)2K.B. p. 109.


tainly does not naean that which the ordinary man, 'the man
on the Clapham omnibus,' as l,ord Bo wen phrased it, the jury-
man common or special, would think a correct appreciation
of the work ; and it is of the highest importance to the com-
munity that the critic should he saved from any such pos-

7. Fair comment means comment honestly believed to be
true, and not inspired by any maHcious motive. ^ ^ Unfair-
ness means the presence of malice. The absence of any
genuine belief in the truth of the comment is conclusive proof
of malice, for no man can have a proper motive for making
defamatory statements which he does not believe to be justified.
Even a comment genuinely believed to be true, however, will
be actionable as unfair, if it is inspired by any improper and
malicious motive.

This being the meaning of unfairness, it is manifest that
the defence of fair comment is simply a particular instance of
qualified privilege. Every man has a qualified privilege to
comment on matters of public interest or submitted to public
criticism, and this defence may be rebutted in the usual way
by proof that the privilege has been maliciously abused, i' ^*

i« Thomas v. Bradbury Agnew &■ Co. (1906) 2 K.B. 627 ; McQuire
V. Western Morning News (1903) 2 K.B. 100.

1 ' The true nature and meaning of the defence of fair comment was
long obscured by certain unfortunate dicta in the case of Merivale v.
Carson (1887) 20 Q.B.D. 275, but the law has been once more put on a
sound and intelligible basis by the decisions of the Court of Appeal in
the two cases cited in tlie preceding note.

1' It is sometimes said that comment is also to be classed as unfair
even in the absence of any dishonesty or malice, if the critic fails to show
a certain degree of moderation, judgment, and competence. Wason v.
Walter (1868) L.R. 4 Q.B. p. 96. It is said that there is a certain
measure of violence or perverseness on the part of a critic, which will
itself condemn his criticism as unfair and actionable. Notwithstanding
the dicta to this effect, it is submitted that this is not so. The distinc-
tion thus suggested is merely one of degree, which it would be impossible
to reduce to definiteness. To apply any such test would mean that any
jury would be at liberty to find a comment unfair, simply because
they did not agree with it and thought it unduly severe. It is sub-
mitted that the violence, exaggeration, or perverseness of a critic has not
in itself any operation in making his criticism unfair, but is merely evid-
ence that the criticism is not honest, or that it is inspired by malice.
It is sometimes said that comment is unfair if it is irrelevant, i.e., if it



8. The burden of proving that a comment is unfair is on Burden of
the plaintiff who complains of it. Here, as in other cases of P""""*'
qualified prixilege, it is for the plaintiff to rebut the defence of
privilege by proving that it was abused and forfeited. ^^

9. WTiether the comment is fair is a question of fact for Fairness a
the jun-. But it is for the judge to decide in the first place question for
(1) whether the subject is one which is in law open to comment, ^^ ^^'^^'
and (2) whether there is any reasonable evidence to go to the

jurv- that the comment is unfair.^" There are, therefore, two
distinct checks on the action of a jury in the case of fair com-
ment. In the first place, they are not at liberty to find for the
plaintiflt" on the ground that in their opinion the matter was
not a fit one for public comment ; that is a question of law for
the judge. In the second place, they are not at liberty to find
for the plaintiff on the ground that the comment is unfair,
unless the judge is first satisfied that there is sufficient evidence
extrinsic or intrinsic, of unfairness, on which such a verdict
could be found.

§ 145. — Privileged Reports.

1. The following kinds of reports are conditionally privil- Privileged
eged : — reports,

(a) Fair and accurate reports of the public proceedings of
any court of justice ; ^

includes defamatory references to matters which are not in law a proper
subject of criticism : e.g., literary criticism which attacks the moral
character of the author, instead of his competence. In such a case,
however, the ground of liability is not strictly that the comment is un-
fair, and the critic's privilege abused and forfeited ; but that no privilege
to comment on such a matter has ever existed. So also it is sometimes
said that a comment is unfair if it is not pure comment, but is mixed with
inaccurate and defamatory statements of fact. Here also the logical
view is not that the privilege has been abused and forfeited, but that it
does not exist. Unfairness in the proper sense is always a question of
fact for the jury ; but whether a comment is relevant (i.e., whether it is
directed to matters capable of being the subject of public comment) is
a question of law for the judge. So also the distinction between comment
and statements of fact is a question of law for the judge, not of fact for
the jury, and therefore must not be confounded with the question of fair-
ness, which is solely for the jury.

1 « McQuire v. Western Morning News (1903) 2 K.B. 100.

2 Ibid.

1 Macdougall v. Knight (1889) 14 A.C. 194 ; Kimber v. Press Asso-
iation (1893) I Q.B. 65 ; Usill v. Hales (1878) 3 C.P.D. 319. Cf.



Chap. XIV.

(b) Fair and accurate reports of parliamentary debates ; ^

(c) Fair and accurate reports published in a newspaper of
the proceedings of any public meeting or of any of the
other kinds of meetings mentioned in section 4 of the
Law of Libel Amendment Act 1888, provided that the
matter published is of public concern and for the public
benefit. ^

"Slander not
proof of

§ 146.— Slandep and Special Damag^e.

L Libel is in all cases actionable per se, but slander is not
actionable without proof of special damage, save in certain
exceptional cases.

2. The special damage required in actions for slander must
be the loss of some definite material advantage ; it must not
consist merely in the loss of reputation itself.* A loss of
the voluntary hospitality of friends is sufficient, however,^ and
so also in all probabiUty is a resulting separation between
husband and wife.^

3. The special damage must not be too remote. Thus in
Speake v. Hughes'' the plaintiff, a barman, was disniissed by
his employer, because of a statement by the defendant that the
plaintiff had removed from premises occupied by him without
having paid his rent ; and it was held that no action lay, for
the special damage proved was too remote. So in Allsop v.
Allsop^ illness resulting from the mental trouble produced by
slander was held too remote.^

AUbutt V. General Council of Medical Education (1889) 23 Q.B.D. 400.
As already indicated (supra, p. 400) a newspaper report of judicial
proceedings is the subject of a statutory privilege, probably absolute,
if it fulfils the requirements of the Law of Libel Amendment Act 1888,
sec. 3.

2 Wason V. Walter (1868) L.R. 4 Q.B. 73.

' 51 & 52 Vict. c. 64. At common law the reports of meetings are
not privileged. The common law privilege of reporting is limited to
judicial and parliamentary proceedings. Purcell v. Sowler (1877) 2
C.P.D. p. 220 per Mellish, L.J.

^ Roberts v. Roberts (1864) 5 B. & S. 384.

^ Davies v. Solomon (1871) L.R. 7 Q.B. 112 ; Moore v. Meagher
(1807) 1 Taunt. 39. « Lynch v. Knight (861) 9 H.L.C. 577.

7 (1904) 1 K.B. 138.

8 (1860) 5 H. & N. 534. « See also Lynch v. Knight (1861)
v9 H.L.C. 577.


4. In particular, special damage is too remote, if it is due. Damage due
not to the original slander, but to a repetition of it by other *° slander""^
persons. ® Therefore it is in ordinary cases insufficient for the
plaintiff to prove that since the publication of the slander his
business has fallen away ; because such a result must have

been due not to the original slander, but to the subsequent
propagation of it by means of repetition. ' But it is otherwise
if the original slander is published to so many persons, that the
diminution of the plaintiff's business may be reasonably
attributed to it rather than to subsequent repetition. ^

5. There are two exceptions to the rule that damage
caused by the repetition of a slander is too remote : (1) when
the original statement is made to a person who is under a legal
or moral duty to repeat it ; ^ (2) when repetition is authorised
or intended by the defendant, for it is a general rule that no
result which is intended can be too remote.

6. It seems to be the better opinion that when special
damage is proved, damages can be recovered not merely for it,
but for the injury to the plaintiff's reputation generally. That
is to say, compensation is not limited to the amovmt of actual
loss proved, but proof of some actual loss is an essential
foundation for a claim of general damages for slander. ^ "

§ 147.— Slander Aetionatale per se.

1. In the following cases slander is actionable per se with- Cases of
out proof of special damage :— actionable

(a) An imputation that the plaintiff has committed a per se.

criminal offence.
(6) Animputation that the plaintiff suffers from an existing,

contagious, venereal disease. '^

(c) An imputation of unchastity against a woman.

(d) An imputation against the plaintiff in the way of his
business or oflSce.

2. An imputation of a criminal offence, to be actionable Accusation
■per se, must amount to a direct charge, and must not be a mere
suggestion or statement of suspicion. ^ The crime charged

• Ward V. Weeks (1830) 7 Bing. 211. ' Dixon v. Smith (1860)

6 H. & N. 450. 8 See Ratcliffe v. Evans (1892) 2 Q.B. 524.

9 Derry v. Handley (1867) 16 L.T. (N.S.) 263.
»» See Dixon v. Smith (1860) 5 H. & N. p. 453.

1 Bloodworth v. Gray (1864) 7 M. & Gr. 334.

2 Simmons v. Mitchell (1880) 6 A.C. 156.


need not be indictable ; but probably it must not be an offence
punishable by fine merely. ^

Accusation 3. At common law a verbal imputation of unchastity is

as 1 y ^^^ actionable per se, but it is now provided by the Slander of

Women Act, 1891, that " words spoken and published

which impute imchastity or adultery to any woman or girl
shall not require special damage to render them actionable."
Imputations 4. Any defamatory imputation upon a man in the way of
traS^ or'^ ° his profession, business, or office, is actionable per se : for
office. example a charge of insolvency against a trader, * of incompe-

tence against a surgeon, of ignorance against a lawyer. A
defamatory charge, however, against a man in respect of a
business in which he is no longer engaged, or in respect of an
office which he no longer holds, is not actionable per se. *
When the plaintiff's office is not one of profit, but one of honour
onl}^ such as that of a justice of the peace, words spoken of him
in that regard, and imputing unfitness or incompetency, are
not actionable per se, unless, if true, they would be a ground
of deprivation. *

A charge is not actionable per se, merely because it tends
to injure the plaintiff in the way of his business or office ; it
must amount to a charge against him in relation to his business
or office. Thus it is not actionable per se to impute dishonesty
to a solicitor imless he is alleged to be dishonest towards his
clients. ' Nor is it actionable per se to impute adultery to a
physician, unless the charge involves a breach of his profes-
sional duty towards his patients. ^ This distinction, however,
is unsatisfactory ; for if the natural and probable result of a
slander is to injure the plaintiff in his business, it is difficult to
see how it can be maintained that the slander does not refer
to him in the way of his business. The only reason why it
injures a solicitor in his business, to say that he has defrauded
some one who was not his client, is because it will probably
be inferred from this that he will defraud his clients also.

3 Webb V. Beavan (1883) 11 Q.B.D 609.

^ Brown v. Smith (1853) 13 C.B. 596.

5 Hopwood V. Thorn (1849) 8 C.B. 293.

8 Alexander v. Jenkins (1892) 1 Q.B. 797. Aliter if the words im-
pute dishonesty. Booth v. Arnold (1895) 1 Q.B. 571.

' Doyley v. Roberts (1837) 3 Bing. N.C. 835, 43 R.R. 810 ; Dauncey
V. HoUoway (1901) 2 K.B. 441.

8 Ayrs V. Craven (1834) 2 A. & E. 2 ; 41 R.R. 359.



Wrongs of fraud or misrepresentation are of two kinds, T"^° kinds of
essentially distinct : (a) The wrong of deceiving the plaintiff,
so that he causes harm to himself by his own mistaken act ;
{b) The wrong of deceiving other persons, so that they by their
mistaken acts cause harm to the plaintiff. The first of these
injuries may be called, in a narrow and specific sense of the
term, the wrong of Deceit ; the second has no recognised
distinctive title, and in default of a better designation it will
here be called the wrong of Injurious Falsehood. We proceed
to consider these in the order mentioned.

§ 148. — Deceit.

Online LibraryJohn William SalmondThe law of torts : a treatise on the English law of liability for civil injuries → online text (page 42 of 55)