Similarly the sphere of publication must not extend beyond the exigency of the occasion. If a person transmits by telegram defamatory matter which would have been privileged if sent by letter the privilege is lost, for the defamatory matter is neces sarily published to the clerks through whose hands the telegram passes and such publication is wholly unnecessary (Williamson v. Freer [1874] L.R. 9 C•P• 393). It would be otherwise if trans mission by telegram was the necessary or reasonable course to adopt in the circumstances (Edmondson v. Birch & Co. [1907] K. B. 371). So where a slanderous charge is unnecessarily made in the presence of persons who have no interest in the matter no privilege will attach thereto. But where a man, in making a statement on a privileged occasion, as a reasonable precaution and in order to protect his own interests calls in some third per son to hear what he says, the presence of such third person will not destroy the privilege. And so where a master, who was about to dismiss a servant for dishonesty, called in a friend to hear what passed it was held that the presence of such third party did not destroy the privilege, for it was material to the master's interest that a third person should be present who could bear witness to the dissolution of the contract, and so safeguard the master against any imputation of having dismissed the servant for reasons other than those he then gave (Taylor v. Hawkins [1851] 16 Q.B. 3o8).
Privileged Reports.—A report of judicial proceedings is privileged if it is fair and accurate and not published maliciously, although such report may contain matter defamatory of an in dividual. It is of great importance to the public that the proceed ings of courts of justice should be universally known. The general advantage to the community in having such proceedings made public more than counterbalances the inconvenience to the pri vate persons whose conduct may be the subject of such proceed ings. It is not necessary that the report should be verbatim ; an abridged report will be privileged, provided it gives a correct and just impression of what took place in court. But if the report is garbled so as to produce misrepresentation, or by suppression of some portion of the evidence has the effect of giving an entirely false impression to the prejudice of one of the parties concerned, it will not be privileged.
A report of the proceedings of either house of parliament is privileged, provided that it is fair and accurate and is not published maliciously.
At common law no reports other than reports of judicial and parliamentary proceedings were privileged ; but by s. 4 of the Law of Libel Amendment act, 1888, a report published in a newspaper of the proceedings of a public meeting, or (except where neither the public nor any newspaper reporter is admitted) of any meeting of a vestry, town council, school board, board of guardians, board or local authority constituted by act of parlia ment, is privileged unless it is proved that such report was pub lished maliciously. It is, however, provided that this section shall not protect (a) a defendant who was requested, and who has re fused or neglected to insert in his newspaper a reasonable letter or statement by way of contradiction or explanation of such re port; (b) the publication of any blasphemous or indecent matter; (c) the publication of any matter not of public concern, and the publication of which is not for the public benefit.
Apology.—An apology is no defence to an action for libel or slander, but may be given in evidence in mitigation of damages.
To be effectual, an apology should not only be made promptly, but should amount to a full and frank withdrawal of the charges or suggestions conveyed, and contain an expression of regret that such charges or suggestions were ever made. It should be given a publicity equal to that of the libel. If the libel appeared in a newspaper, the apology should be inserted in the same newspaper in as large a type and in as conspicuous a position as the libel, so as plainly to attract the attention of readers to it.
In any action for libel contained in a newspaper, it is a good defence that such libel was inserted without actual malice and without gross negligence, and that before the commencement of the action, or at the earliest opportunity afterwards, the defend ant inserted in such newspaper a full apology for the libel, or, if the newspaper in which the libel appeared was published at in tervals exceeding one week, that he offered to publish the apology in any newspaper selected by the plaintiff. This defence must be accompanied by the payment of a sum of money into court by way of amends, otherwise it will be deemed a nullity.
Slander is not a criminal offence, though the words uttered may come within the criminal law as being blasphemous, seditious or obscene.
But although libel is a criminal offence as well as an actionable wrong, a man whose private character has been attacked should not institute criminal proceedings unless the words are of a kind calculated to provoke a breach of the peace. If he does so, the judge will direct the grand jury to throw out the bill of indictment and leave the prosecutor to pursue his civil remedy.
In a civil action the person defamed must, as we have seen, prove a publication to some third person, as without that there is no injury to his reputation. But in criminal proceedings this is not essential; it is sufficient to prove a publication to the actual person defamed provided the words might reasonably tend to provoke him to a breach of the peace (R. v. Adams [1888] 22 Q.B.D. 66). Again, as we have seen, the truth of the matters charged is a complete defence to a civil action for libel. But in criminal proceedings, until 1843, the fact that the words were true was regarded as wholly irrelevant. No evidence was admitted of the truth of the matters charged, not even in mitigation of sentence. But now, by s. 6 of Lord Campbell's Libel act, 1843, the defendant is entitled to give evidence of the truth of the matters charged, but such evidence will not amount to a defence to the indictment unless it was for the public benefit that the matters charged should be published. If the defendant is convicted, the court, in pronouncing sentence, will consider whether his guilt is aggravated or mitigated by his plea of justification and by the evidence given to prove or disprove the plea.