Libel

Absolute Privilege.

There are certain occasions on which public policy and convenience require that a man should be free from responsibility for the publication of defamatory words, even though he knew them to be false and spoke or wrote them with the express intention of injuring the plaintiff. Parliamentary, judicial and State proceedings are occasions of absolute privilege. No action will lie against a member of either house of parliament for defamatory statements made by him in the course of any parliamentary debate or proceeding, however injurious they may be. Statements contained in a petition addressed to parliament, or made by a person when giving evidence before a parliamentary committee, are absolutely privileged. Parliamentary papers pub lished by the authority of either house are protected by a special statute, and the court will at once stay any proceedings com menced in respect of defamatory matter contained therein upon delivery of a certificate, properly verified by affidavit, setting forth that they were published by the authority of parliament (Parliamentary Papers act, 1840). No action will lie for defama tory statements made by any judge, juror, counsel, party or wit ness in the course of any proceedings before a court of justice, nor for defamatory statements contained in any pleading, affidavit, proof of a witness, or other document properly used in the course of such proceedings. An absolute privilege also attaches to de famatory statements contained in any newspaper report of judicial proceedings provided that such report is both fair and accurate and was published contemporaneously with such proceedings (Law of Libel Amendment Act, i888, s. 1). A similar immu nity, resting also on grounds of public policy, is accorded to official statements made, and official letters written, by an officer of State in the course of the performance of his official duties, and to all acts of State and the official notification thereof in the London Gazette.

Qualified Privilege.

There is a much larger class of occa sions on which the interests of society require that a man should be protected in stating what he believes to be the truth about another, but only if he makes the statement honestly and not for any indirect or wrong motive. Such occasions are called occa sions of qualified privilege, for the defendant is only entitled to protection if he uses the privileged occasion for the purpose for which it arose. He is not entitled to the protection of the priv ilege if he uses the occasion for some indirect or improper motive, e.g., to gratify his spite against the plaintiff. The law makes the motive with which the occasion is used the true test of the defendant's liability.

The guiding principle by which occasions of qualified privilege may be ascertained was laid down by Lord Atkinson, in Adam v. Ward (1917) A.C. 309, as follows: "A privileged occasion is an occasion where the person who makes a communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it. This reciprocity is essential." A common illustration of privilege under this head is the char acter of a servant. It is the moral duty of a master on enquiry being made as to the character, fitness or capacity of a servant who has been in his employ to state all that he knows either for or against the servant, and if he does so honestly and without malice towards the servant his answer will be privileged, for the intending employer has clearly an interest in the subject-matter of the enquiry. There is a reciprocal duty and interest.

The privilege which attaches to information given in answer to an enquiry as to a servant's character applies to every answer to an enquiry of a confidential nature made by a person who has an interest in the subject-matter thereof, e.g., an answer to the en quiry of a tradesman with regard to the credit or solvency of a person with whom the tradesman proposes to deal. The person, however, who makes the enquiry must have a legitimate interest in the subject-matter thereof, not merely an interest which springs from idle curiosity. It is no part of a man's duty to go into the confessional to every chance person who may choose to ask impertinent questions about another.

There are some cases in which it is the moral duty of a man, unasked and of his own accord, to give information to another, e.g., where a confidential relationship exists between them. For instance, a father or near relative of a woman may warn her about the character of a man whom she proposes to marry. And even though no confidential relationship exists between the parties information given may nevertheless be privileged. The rule at the present day may be broadly stated as follows : a person who has information materially affecting the interests of another is en titled to tell that other what he knows with the honest purpose of protecting his interests, and if he does so with that honest pur pose and in the full belief that his information is true, such communication, though volunteered and made to a complete stranger, is privileged (Stuart v. Bell [1891] 2 Q.B. 341).

Statements made by a man in the bona fide protection of his own interests, or in answer to an attack made upon him, are privileged, provided they are fairly relevant to the matter in hand (Adam v. Ward [1917] A.C. 3o9). And where two or more persons have a legitimate common interest in any matter any communication passing between them in reference to that mat ter is privileged, e.g., communications between directors of the same company or ratepayers of the same parish (Hunt v. Great Northern Railway Co. [1891] 1 Q.B. 6o1).

The scope of the defamatory matter must not exceed the exigency of the occasion. If a person on a privileged occasion goes into matters not in any reasonable sense germane to the subject-matter of the occasion no privilege will attach to his statement in so far as such matters are concerned (Adam v. Ward, p. 997). And so where a man wrote a letter to the manager of some property in which he and A were jointly interested, prin cipally about the property and the conduct of A in reference thereto, but also containing a charge against A of ill conduct towards his mother, it was held that, although the part of the letter about A's conduct as to the property was privileged, such privilege did not extend to that part of the letter which reflected on A's conduct to his mother, for the manager of the property could have nothing to do with that (Warren v. Warren [1834] 2 Cr. M. & R. 25o).