It is for the jury, not the judge, to determine whether the words are defamatory. Libel or no libel is of all questions peculiarly one for a jury. It is the duty of the judge to tell the jury what in law is a libel, and then leave it to them to decide whether the particular words complained of fall within that definition or not. Where, however, the judge is of opinion that the words are in capable of any defamatory meaning, it is his duty to direct the jury as a matter of law to find that there is no libel. (Capital and Counties Bank v. Henty [1882] 7 app. cas. 741). But he should only do this when he is satisfied that a finding by the jury that the words are defamatory would be set aside as wholly unreasonable (per Kelly, C. B., in Cox v. Lee [1869] L.R. 4 Ex. 284, at p. 288).
It is immaterial whether or not the defendant intended the words to be defamatory. The question is, not what the defendant intended the words to mean but what reasonable men, knowing the circumstances in which the words were published, would un derstand to be their meaning. (Hankinson v. Bilby [1847] 16 M. and W. 492). Libel consists in using language which others know ing the circumstances would reasonably think to be defamatory of the person complaining and injured by it. A person charged with libel cannot defend himself by showing that he intended in his mind not to defame, although he may properly urge such fact in mitigation of damages. A striking illustration of this rule is to be found in the Scottish case of Morrison v. Ritchie & Co. (1902) 4 Fraser 645, where damages were recovered against the proprietors of a newspaper who in all innocence had announced in the paper that a lady, who had in fact been married only a month, had given birth to twins.
It is also immaterial whether or not the defendant intended to refer to the plaintiff. The question is : Would the words be under stood by reasonable people who knew the plaintiff to refer to him? If so, they are published of and concerning the plaintiff no matter what the intention of the defendant may have been (Hulton & Co. v. Jones [191o] A.C. 2o).
An action cannot be maintained for libel unless there has been a "publication," i.e., a making known of the defamatory matter to some person other than the person of whom it is written. A communication of the defamatory matter only to the person de famed cannot injure his reputation though it may wound his self esteem. A man's reputation is not the good opinion he has of himself but the estimation in which others hold him. So in the case of slander the words must be uttered in the presence and hearing of some third person. If they are uttered in the presence and hearing of the person slandered only there is no publication, and therefore no action will lie.
It is not, however, necessary in every case to prove directly that the defamatory matter was brought to the actual knowledge of some third person. If facts are proved from which such in ference can be reasonably drawn a prima facie case will be estab lished. For example, proof that a letter was posted is sufficient prima facie evidence that it reached the addressee, and of a pub lication to him. Similarly, if a libel be written on the back of a postcard and then sent through the post there is evidence of a pub lication, for the writing is necessarily visible to every person through whose hands the postcard passes, and the court will pre sume, in the absence of evidence to the contrary, that others be side the person to whom the postcard is addressed, e.g., em ployees of the post office, will read, and have in fact read, it. (Huth v. Huth [1915] 3 K.B. 32). There is also evidence of publication if the libel is contained in a telegram, for the contents of a telegram is necessarily communicated to the clerk and tele graph operators whose duty it is to transmit it. (Williamson v. Freer [1874] L.R. 9 C.P. 393).
If A writes a letter defamatory of B and sends it to B and the letter is opened and read by C, A is not responsible for the pub lication to C unless it can be proved that A knew that the letter would be likely to be opened and read by some person other than B, e.g., that A knew that B was blind or could not read. (Powell v. Gelston [1916], 2 K.B. 615).
A husband is civilly liable for a libel or slander published by his wife, even though she is living apart from him under a deed of separation. But he is not liable for a libel or slander published by her after the granting of a decree of divorce or judicial sep aration. A master is civilly liable for a libel or slander published by his servant in the course of his authorized employment, even though he was expressly forbidden to publish any defamatory matter. (Citizens' Life Assurance Co. v. Brown [19o4] A.C. Every re-publication of defamatory matter gives rise to a fresh cause of action. It is no defence to the re-publisher of a libellous letter that he received the letter from another and be lieved the statements contained in it to be true, though the fact that he disclosed the name of the person from whom he received the letter at the time when he re-published it may mitigate the damages. So in the case of a slander it is no defence to a person who has repeated a slander that he did not originate it, but only repeated what some other person had told him. The existence of a slanderous rumour is no justification for repeating it.