§ Order for Second Reading read.
§ SIR COLMAN O'LOGHLEN,
in moving that the Bill be now road the second time, said, that the question of the law of libel was one of general interest; he would therefore trespass a short time on the attention of the House while he explained the provisions of the Bill, and the existing evils he proposed to amend thereby, trusting that he should be able to advance reasons which would satisfy the House that the Bill ought to be read a second time. In the outset he would say that this measure was substantially the same as that he introduced in 1865, which was received with approbation by the press generally, and was supported by petitions from upwards of seventy proprietors of journals, but which he was obliged to withdraw on account of the pressure of business. It was not deemed expedient to re-introduce the Bill last year; but this Session he had taken the earliest possible period of doing so, in order that the subject might be discussed previous to the more exciting debates upon the Reform Bill. Upwards of sixty petitions had already been presented to the House in favour of the measure, and he should show that its principles were founded upon justice, and that it was suited to meet the exigencies of the case. Happily, the question was one which was entirely outside party politics. The time had arrived when neither party sought to influence matters by press prosecutions, and therefore all parties could approach this question and consider it merely in the light of 1717 one of law amendment. Before he called the attention of the House to the provisions of the Bill, he might perhaps be permitted to take a short retrospect of the present law of libel. The House was aware that for a long period the law relating to this subject was part of the common law of the land—and, in fact, there was no exact definition of the word "libel." Jeremy Bentham had said that the definition of that word in law was so general that it might be taken to mean anything written of a man of which he thought he had grounds of complaint. The present definition seemed to be anything written which tended to bring any person into ridicule, hatred, or contempt. The law as it stood was entirely opposed to the principles of a free press; and indeed it was a wonder to him how, considering the arbitrary laws which governed it, it could have obtained the position it had in this country. It had, however, not obtained that position entirely without the aid of the Legislature, because, after the trials which took place in the cases of the Dean I of St. Asaph and Woodfall, a Bill was I brought forward by Fox and supported by Pitt, which was carried, and might be called the Magna Charta of the press. By that I Act the power of defining libel was taken out of the hands of the Judges, and such questions were left to the juries. That really was the foundation of the liberty that the press at present enjoyed. But it did not do all that was necessary, for various complaints had been from time to time made with regard to the pressure of the law of libel on the press. A long time the maxim prevailed "the greater the truth the greater the libel; "but happily it was now exploded. It was not till 1843 that the Legislature again interfered; but in that year, in consequence of petitions from the Provincial Newspaper Press Association, a Committee was appointed by the House of Lords, and subsequently Lord Campbell introduced a Bill which became law, and effected a very beneficial change, by allowing the person sued to plead the correcotuess of a report, that he had inserted an apology at the earliest possible moment, that the report was inserted without malice, and in some cases a justification. That was a very valuable extension of the law, and conferred great privileges upon the press; and the consequence was that no further agitation took place in Parliament upon the subject until 1857. In that year a circumstance occurred which caused the 1718 attention of Parliament to be again directed to the subject. In that year an action was brought against Mr. Davison, the proprietor of a newspaper—The Durham Advertiser—in consequence of a report which appeared in his paper of the proceedings at a meeting of the Improvement Commissioners at West Hartlepool. To the declaration in that case the defendant pleaded that the report was a correct one, and that no action lay; but on a demurrer the Court of Queen's Bench ruled that the correctness of a report did not remove from the defendant the responsibility of publishing any libel contained in it. On trial the verdict was for the plaintiff, with a farthing damages; but notwithstanding that those damages were merely nominal, the defendant had to bear his own costs, which exceeded £400. This case led to the presentation of a number of petitions to Parliament praying for an amendment of the law of libel; and the House of Lords again appointed a Select Committee and examined witnesses, the object of the Committee being to inquire into whether immunity should be given to persons publishing bonâ fide and accurate reports of proceeding of the two Houses of Parliament, of assemblies or public meetings under certain conditions and liabilities. The Select Committee reported in favour of extending protection to bonâ fide reports in the former case; and that—Where an action is brought for an alleged libel in the report of the proceedings of a public meeting lawfully assembled for a lawful purpose, if the report be faithful, the jury shall find a verdict for the defendant unless the plaintiff has sustained actual damage.Lord Campbell, accordingly, in 1858, introduced a Bill to carry out the recommendations of the Select Committee; but it did not pass the second reading, being thrown out by a majority of 35 to 7 votes. The matter again slept until 1865, when he (Sir Colman O'Loghlen) introduced his Bill. The measure now before the House consisted of several distinct subjects. In the first place, it dealt with reports of public meetings; in the second, it endeavoured to fix upon the authors of libels the responsibility now resting upon the proprietors of newspapers for publishing them; and the third point had reference to proceedings on indictments for libel. The alterations the Bill made in the law were undoubtedly of a serious character. It would make the 1719 speakers at public meetings liable for any scandalous language they might utter; and so long as the newspaper reporters reported the proceedings accurately, it would relieve them or the proprietors from liability to action. At present any man might get up at a public meeting and attack a man's character, well knowing that unless he imputed to him the commission of an indictable offence, or said something calculated to injure him in his profession or business, he could not be put upon his trial for the words he used, although the newspaper proprietor who reported his words could. In his opinion, a man who went to a public meeting, where he knew his words would be taken down, ought to be as much responsible for what he might say as for what he might write. He knew very well that objections would be raised against alterations in the law of slander—a law which had long existed, and which many would say had been sanctioned by custom and the Judges, and that they could not do so without sapping the very foundations and principles of the law; but with great respect for the opinions of eminent Judges, he would say that it was fitting that the law should be changed in accordance with changes in the spirit of the times, and he thought he could satisfy the House that there ought to be a change in the law so far as to render persons liable for the speeches they chose to make at public meetings. The very principle of the doctrine that there was a difference between libel and slander was that the latter was not so deliberate as the former. But when it was considered that the speakers at meetings were well aware that their speeches were being taken down by reporters and would be published, and that any person animated by malice might go to a meeting to give vent to calumnies with the express object of getting them reported, a state of the law which exempted them from all liability, and fixed it upon newspaper reporters or proprietors, was disgraceful, and ought not to be allowed to continue. This question was raised in the House of Lords when the Bill of 1858 was before it, and both Lord Campbell and Lord Lyndhurst expressed opinions which were in entire concurrence with those he now enunciated. Lord Lyndhurst said—When you come to consider the circumstances attending a public meeting such as I have described, the principle on which the distinction between written and oral slander is made, hardly applies, A man goes to a meeting prepared with 1720 a slander. He sees it taken down; he speaks it for that purpose; he knows it will be published. Take, however, another illustration. Supposing I dictate words detracting from the character of another man to a person who puts them down, and I wish him to publish them. In that case I am responsible, and may be indicted for the libel. It is true that in the example we are now considering there is no authority given—no expression of a wish that it should be published. But everybody knows that it is the intention of the speaker that it should be published, and therefore I say the distinction between oral and written slander does not apply to the case we are now dealing with."—[3 Hansard, cxlix. 963.]And the present Lord Chancellor was of the same opinion, because he said there was no real distinction between talking libels in public and writing them for the purpose of being published; therefore, reason and justice alike demanded that he should be made responsible for them. Reporters were too much pressed to weigh and consider the matters which they were reporting with such nicety as to detect libels. Very often they wrote at great speed, and folio after folio of their copy was taken away by messengers and despatched to the printers as fast as they wrote it, so that scarcely any time could be given for revision—and, indeed, they might not even know that what they were writing constituted a libel. Yet they or the newspaper proprietors were made liable. One object of the present measure was to give them the same immunity with respect to correct reports of public meetings as they enjoyed in regard to reports of judicial proceedings. That exemption, which they enjoyed by virtue of a legal decision given some sixty or seventy years ago, was originally confined to trials; but he believed it had been gradually extended to police courts, bankruptcy examinations, and proceedings before other tribunals. He did not propose to give an absolute immunity, but that it should be a defence to an action for libel to plead that the words which formed the subject-matter of the libel were spoken at a public meeting convened for a lawful purpose, open to reporters, and were published without malice, and in the ordinary course of business as a newspaper report; provided always that the newspaper proprietor consented to publish immediately an apology, or any explanation, not of unreasonable length, sent to him by the person aggrieved, in as conspicuous a place in his paper as that in which the libel was published. An objection might be taken to this that men of straw might make damaging speeches, 1721 and that if the remedy against the newspaper were abolished, the injured party would have no remedy at all. The speakers, however, would be liable to a criminal information, and greater mischief, he contended, accrued from the present law than would result from the immunity he proposed. It was obviously very important that the public should be furnished with accurate reports of what took place at the meeting of local bodies, invested with taxing and other powers, and at important railway, bank, or other commercial and public meetings. Mr. Baines, in his evidence before the Lords' Committee, said—In large towns public meetings are held almost daily, and frequently several in a day, so as to make it practically impossible for any Editor to read the reports before going to press. Reports are brought in by reporters, very often from distant places, late at night, written out by several different reporters, sent to the printer folio by folio, and sometimes not finished many minutes before the newspaper must be printed and in the post office. This Is the every day routine in newspaper offices, both in London and in the country. There is scarcely any kind of meeting where matter is not uttered which by a rigid interpretation of the Law of Libel, especially before its recent improvement, would be actionable. There is, perhaps, scarcely a meeting of the House of Commons at which something is not said that might be actionable, yet the exposures made of evils and wrong-doings are of the highest public utility. If perfect security is required against the publication of libels, the only effectual security is to be found in the censorship of the press. This would, of course, destroy public liberty, and any curtailment of the existing practice of reporting public meetings would strike a severe blow at all kinds of improvement.And he proceeded to urge on the Committee the propriety of giving protection to such reports, saying—I would further beg to submit to the Committee, that the publicity of the proceedings of public meetings through the press is a very important check on wanton and defamatory statements. I maintain that the press, in this way, prevents and corrects a much greater amount of defamation than it propagates. The very knowledge on the part of speakers that their words will be published, is a check upon them.It might, however, be said that no actual grievance existed, since actions of the kind he sought to prevent were never brought. The contrary, however, was the fact. Mr. Dobie, the solicitor to The Times, stated,: in his evidence before the House of Lords' Committee, that two actions had been brought against that journal for reports of: public meeting. In this case, although speeches delivered in that House—one the jury only gave a farthing damages, the being for a speech by Dr. Lushington, the defendant had to pay his own costs. In present Judge of the Admiralty Court, 1722 and the other for a speech by Lord George Bentinck, relative to proceedings which had been taken under an old Act against horseracing. In one of those actions justification was pleaded, and the case never came to trial, but The Times had to get rid of the action by paying the plaintiff's costs as well as their own, and the other action was abandoned, but The Times was put to a great expense in preparing their defence. He held in his hand a book by Mr. Evelyn, containing a list of such actions which had been brought from the case of "Davison v. Duncan," in nearly all of which the jury showed their opinion of the merits by giving only nominal damages, yet in nearly all the newspapers had to pay considerable costs. There was first the case of "Duncan v. Davison," in 1857, when the damages being a farthing, the costs were over £400. In the following year there was an action against The Sheffield Independent, in consequence of some uncomplimentary allusions made at a trades union meeting, the damages being 1s., and the defendant having to pay his own costs. In 1862 there was the case of "Rogers v. Loader," against the same journal, for a report of proceedings connected with the workhouse; and the jury, in that instance, exercising their power under Fox's Act, found that the report was not a libel. In 1864 there occurred the case of "Hood v. Cowslade, which was an action against The Reading Mercury for a report of the proceedings at a meeting of the Board of Health. In that case the Lord Chief Justice said that, in his opinion, under the law as it then stood, a report of proceedings at a public meeting of an organized body was just as privileged as if the proceedings had taken place in a Court of Justice. The attention of the Lord Chief Justice was called to the Durham case, but his Lordship intimated he did not agree with the ruling in that case, adding that public opinion had advanced so much of late years that he was inclined to say that the press had full immunity in publishing reports of proceedings at public meetings such as he had referred to. In another case, against The Nottingham Daily Guardian. It arose out of an electioneering squabble, and was an action for publishing the report of a speech at ac 1723 tion was brought by a Roman Catholic clergyman for a libel contained in a speech made by a Protestant clergyman, and reported in that paper, and the defendant was put to enormous cost in defending himself. There was another case, tried in 1865, in which an action was brought against the proprietors of The Manchester Guardian for an alleged libel contained in a report of a public meeting, and a second action was brought against the person who had uttered the libel complained of; but the latter action was withdrawn, and the result of the action against the proprietors of The Manchester Guardian was that, on the suggestion of the Judge, a juror was withdrawn; but the proprietors had to pay the costs. He thought that these cases offered sufficient evidence of the existence of a real grievance; and, this being so, the question was how could that grievance be remedied? One proposition he had to make was, that which was made by Mr. Johnson Gedge, the Secretary to the Provincial Press Association, when examined years ago before a Committee of the other House. That gentleman proposed that newspapers should be at liberty to publish reports of all speeches made at public meetings, provided the reports were accurate, and the publishers inserted, if required, a contradiction made by any person complaining of any statement so published, the contradiction, being of moderate length, to be inserted in as prominent a part of the paper as that which contained the original report. The suggestion as to the publication of the contradiction was taken from the French Law of Libel. M. Dupin, having told the House of Commons' Committee that there were few actions for libel in Prance, was asked—Has a person reflected upon in any periodical publication a right to compel the editor to insert his answer to the attack, and, if so, under what circumstances?—He has the right, in any case in which the attack implies an imputation upon his character, to compel the editor to insert his answer, provided that answer is not more than twice as long as the attack. Thus, if an attack is ten lines, your answer must not be more than twenty. In this case, a journal which would refuse the insertion would be condemned to make it by the courts of justice. Nevertheless, the courts of justice have sometimes sanctioned the refusal of the editor to insert the answer if the answer was offensively couched, although the offence was by way of reprisal-either against the editor or against others. Is this provision found of practical utility, and does it operate as a useful cheek upon slander?—This provision granted by the law is very useful.1724 This provision, then, having been found to have a very beneficial effect in Franco he (Sir Colman O'Loghlen) believed a similar effect would be produced if it were adopted in England. The main object of the first part of the Bill was therefore to make those who chose to make scandalous statements at public meetings responsible for those statements; and the second object was to give immunity to the press in publishing reports of proceedings at public meetings; but this part of the question was one which he thought might be considered in Committee, and it might be found that the newspapers might be relieved by other means than those which he proposed. Upon this point he was ready to listen to any suggestions or amendments. The second part of the Bill related not only to the press, but to all sorts of actions for libel. It dealt with costs, the most material question in every action for libel. Under the law as it existed in England, unless a plaintiff obtained a verdict for 40s. damages he was not entitled to costs; but in Ireland a farthing damages carried costs. The difference in the law as between the two countries was one that, in his opinion, ought no longer to exist; and he therefore proposed that the law of Ireland should be assimilated to that of England in this respect. He also proposed that unless a plaintiff obtained a verdict for damages amounting to £5 or upwards, he should not be entitled to more costs than damages. He had read cases in which Judges had refused to tell the jury what amount of damages would carry costs; but he thought it undesirable that this practice should be followed, because, although it was a legal fiction that all persons should be acquainted with the law, it was very seldom that juries could be found who possessed such legal knowledge: and he was glad to perceive that the Chief Justice of the Common Pleas, in a recent case, had not followed the practice resorted to by other Judges, but had told the jury the amount of damages which would carry costs. At present, where only a shilling or even a farthing was recovered in the shape of damages, although the plaintiff did not get his costs, the defendant bad to pay the expense he had incurred in defending the action. In his opinion the press ought to be protected against actions being brought by pettifogging attorneys for costs, or by parties who merely desired to gratify a malignant feeling. It was suggested to the Committee of the House 1725 of Lords that if substantial damages were not given to a plaintiff the defendant should not only be freed from the payment of the plaintiff's costs, but should have his own costs paid by the plaintiff. Mr. Johnson Gedge, the proprietor of The Bury Post, and other witnesses, had urged that the defendant should have his costs paid where the proceedings against him were shown by the verdict to have been vexatious or malicious. In the Kill he (Sir Colman O'Loghlen) brought in in 1865 he had proposed that where a plaintiff only obtained a verdict for 20s. damages, he should not only not be entitled to costs, but should pay the costs of the defendant, and he only gave the plaintiff costs where he recovered 40s. Since then he had found that there were several objections to the proposal that the plaintiff should pay the defendant's costs where he had recovered any amount of damages, and he now proposed to effect his object in a different way. His present proposition was that, as in other cases, the defendant in an action for libel should be at liberty to pay money into court; and if the jury considered the amount so paid into court sufficient to cover the injury, the defendant would be entitled to costs from the plaintiff. At present he could only do so under Lord Campbell's Act, where he pleaded a full and ample apology. The course he proposed was that in most actions in tort, and he thought it might be beneficially adopted in actions for libel. Furthermore, he proposed that where money was paid into court, and was not accepted by the plaintiff in discharge of his action, the plaintiff should not be allowed to proceed unless he gave security for costs; the newspaper proprietor who defended was already bound to give security to the Crown on the establishing of his paper, for any damages that might be awarded against him, and it would be no hardship to require the plaintiff to give a similar security. The third part of the Bill related to indictments or prosecutions for libel. At present there were three courses open to a party libelled: he could bring an action, he could file a criminal information in the Queen's Bench, or he could indict the publisher or writer of the libel. If an action were brought, the defendant stood on tolerably equal terms with the plaintiff: he could plead justification, could himself be examined as a witness, and, in case of obtaining a verdict, be could recover costs from the plaintiff. In the case of pro- 1726 ceeding by criminal information no one could file such an information without leave of the court, so that there was a check against vindictiveness; but there was no check against procedure by indictment. In criminal information or indictment, moreover, the defendant stood in a very different position—he could not offer himself as a witness—his mouth was stopped, and though he might plead that what he had stated was true, and that the publication was for the public benefit, he could not be called in support of his plea, although very probably he was the only person able to establish it, course could be resorted to for purposes of oppression or to gratify malignant feelings. Again, where a man was indicted the Crown had power—though that power was now restrained by public opinion—to pack a jury; but the plaintiff in an indictment for libel could use this power, inasmuch as the prosecutor stood in the position of the Crown; and an instance in which the attempt to do this had been made had occurred in the sister country, but it drew from the present Chief Justice of Ireland, then Mr. Whiteside, so strong a remonstrance that the Judge interposed. The system was liable to the greatest possible abuse, as was exemplified in the case of Sir Robert Clifton, who had been summoned before police magistrates for a libel alleged to have been contained in a letter he had written; and in the case of the proprietors of The Railway Times and Chronicle, who were summoned to appear at Bow Street for having inserted in their paper letters reflecting on the management of the directors of the South Eastern Railway Company, those letters having been written by Mr. J. J. Hamilton, a shareholder in the company to the extent of £33,000. In Scotland the right of criminal prosecution in cases of libel practically did not exist, or had become obsolete. There was another inconvenience in the existing law, which was that a person indicting another for libel was not liable for costs himself, unless the defendant pleaded and proved, under Lord Campbell's Act, that what he had published was for the public benefit. He had originally proposed to do away with procedure by indictment in libel cases in this country; but on reflection he saw that cases might arise in which it would be desirable that a larger power of punishment than that of awarding damages should be retained; and his present proposition was therefore that no 1727 indictment for libel should be sent into court without the consent of the Attorney General, or, in case that office were vacant, of the Solicitor General. He also proposed that on a trial by indictment or information for libel, the defendant might offer himself as a witness. The fourth part of the Bill simply proposed a short form of pleading justification, so that the pitfalls which were at present due to the technicalities of the law might be avoided. But in order that the plaintiff might not be injured by the use of a plea which might be regarded as of too general a nature, he proposed to give him power to require a bill of particulars. Furthermore, he proposed that the Bill should not extend to Scotland. In conclusion, he had only to say that in his opinion the best protection against the licence of the press would be found in having the press conducted by respectable persons, and anything which tended to expose the proprietors of newspapers to needless and vexatious proceedings was calculated to discourage such persons from retaining their connection with the press. He was not prepared to say that every provision in the Bill ought to receive the sanction of the House, but he was perfectly willing to have it amended in Committee.
§ Motion made, and Question proposed, "That the Bill be now read a second time."—(Sir Colman O'Loghlen.)
THE SOLICITOR GENERAL
I do not rise to offer any opposition whatever to the second reading of this Bill. After hearing the statement of the hon. and learned Gentleman I think that it will be in many respects a highly beneficial Act if it passes: but there are several matters in it which will require care and consideration, either before a Select Committee or in Committee of this House, because I think it will be found that there are very great powers given to the press by the Bill, and it is a question whether those powers are not larger than the hon. and learned Member intended. Let me call attention for a moment to the case that was mentioned by the hon. and learned Gentleman, that of "Davison v. Duncan," which was decided against The Durham Advertiser, for commenting on the proceedings of the West Hartlepool Commissioners. The decision in that case was the occasion of Lord Campbell's Bill in 1858. That Bill, which was in some respects similar to that now before the 1728 House, but differing from it in some material particulars, was thrown out on the second reading by the House of Lords, in consequence of the difficulties felt by some noble Lords as to the extent to which the privileges of the press ought to be carried. In commenting on the case of "Davison v. Duncan" Lord Campbell said—The inconvenience arising from the chance of the injury to private character is infinitesimally small as compared to the convenience of publicity. But it has never yet been contended that such a privilege extends to a report of what takes place at all public meetings. Even if confined to a report of what was relevant to the object of the meeting, it would extend the privilege to an alarming extent. If this plea is good, a fair amount of what takes place may be published, whatever harm the publication may do to private character, provided it took place at a meeting of a public nature—a wide description, embracing all kinds of meetings, from a county meeting to a parish, meeting.Those were the observations made by Lord Chief Justice Campbell in the case referred to; and I would ask the hon. and learned Member—not for the purpose of impeding the progress of his Bill, but in order to prevent its being wrecked either here or elsewhere—that some more careful definition of a public meeting than that contained in the 1st clause should be hereafter framed. I find the definition of a public meeting in the 1st clause is "any public meeting lawfully assembled for a lawful purpose." That, in the words of Lord Campbell, is extending the liberty in a rather alarming degree, more especially since, as was pointed out by Lord Lyndhurst in the debate on the Bill in the Upper House, in a great many cases people go to a public meeting for the purpose of uttering slander. And although under the 2nd clause these persons are made liable for any injury done to the person slandered, yet they are frequently persons against whom it is useless to bring any action at all, and the real injury is done by the circulation of the slander in the newspapers. So far, however, as I have been able to give attention to the Bill and to the statement of the hon. and learned Gentleman, I think that the second clause will work extremely well. It has been urged that slander and libel are not by the law put upon the same ground—that the person uttering slander usually does so in the heat of the moment, and that the effect is fleeting; while the words used in a libel deliberately published are intentionally used, and are of a very different cha- 1729 racter from words used in the heat of the moment. I cannot, however, help thinking that the observation made by Lord Lyndhurst in the debate in the House of Lords is perfectly true—that a man who goes to a public meeting to make a statement makes it with a deliberate intention, and with a full knowledge of what it comprehends. I cannot see, however, why that man should not be liable to an action, or to any other proceeding for libel, just as if he had published the libel, and circulated it. I will not detain the House by going through the different clauses of the Bill; but that which refers to paying money into court I think will be fair and useful. I would suggest, however, that in Clause C, providing that unless the jury shall give damages exceeding £5 the plaintiff shall not be entitled to more costs than damages, it would be well to add words to the effect—"Except the Judge should think that the action was one which ought to have been brought, and that costs ought to be awarded." With regard to the practice of some of the Judges in declaring what amount of damages carry costs, it differs in various Courts; but I cannot help thinking that it would not be inconvenient if the jury always know what damages would carry costs. I cannot quite agree with the hon. and learned Gentleman that everyone is expected to know the law, although there is an old legal maxim that ignorance of the law is no excuse. I recollect that a very learned Judge, Mr. Justice Maule, who is now dead said that if it were supposed that every one was acquainted with the law the Judges of the land were exceptions; because in a writ of error it was always set forth that there were manifest errors in the judgment. The clause requiring that no prosecution for a libel shall be brought except with the sanction of the Attorney General will also require to be considered in Committee. I do not think that my hon. and learned Friend the Attorney General would shrink from performing a public duty; but this difficulty must arise, that a case would go before the jury with a certain amount of sanction to the prosecution if the Attorney General had given his consent to its institution; and, in the next place, the clause was open to the objection that it would not be easy, without some proper machinery being provided, to enable him to do so, for the Attorney General to determine accurately whether the case is one in which there 1730 ought to be a prosecution. The 8th clause of the Bill, which enables a defendant at the trial of an indictment or information for libel to offer himself or herself as a witness, and also enables the husband or wife of a defendant to be examined, has my unqualified approbation. Since the passing of the Common Law Procedure Act the practice has prevailed under its sanction of pleading generally in actions of libel that the alleged libel is true; but any difficulty arising from this is removed by the provision that a bill of particulars of what is intended to be relied upon by the defendant shall be given in all cases where it is desirable it should be given. With regard to the clause in which it is proposed that security for costs should be given by the plaintiff, I did not quite follow the hon. and learned Gentleman's reasoning; but it appears to me that all the parties ought to be put upon the same footing in that respect. I have made these remarks in order that they may receive the hon. and learned Member's consideration, and not with any view of opposing the second reading.
§ MR. NEWDEGATE
said, the Bill had been introduced as a Bill in the first instance to promote the freedom of the press. It was the practice of hon. Gentlemen on the opposite side of the House, the hon. Member for Leeds especially was wont to laud the press of this country, and to compare the cheap press with that of the United States, drawing a just comparison in favour of the higher tone that prevailed in the cheap press of England. Now, if under the present state of the law the public press of the country was marked by a high tone, he thought that the House would not lightly regard any proposal to alter the law under which that press existed. The hon. and learned Member (Sir Colman O'Loghlen) had laid great stress upon the injustice of leaving the proprietors of newspapers liable to be prosecuted for defamation; but the probability was, that the responsibility which at present attached to the proprietors had done much to create the present high tone of English journals. The man who undertook a risk under securities for his good conduct was likely to be a man of higher character and position than a person placed under no such moral and practical restraint. This Bill, in the first instance, purported to widen the freedom of the press; but how would it affect the freedom of individuals? One peculiarity 1731 of our legislation of late years had been that it had enormously increased the liberty and power of associations, but it had done very little for individual freedom. Formerly from the other side of the House proceeded eloquent vindications of individual freedom; but now they heard nothing from that quarter but appeals for the extension of the freedom and power of associations. The hon. and learned Gentleman proposed that individuals who made statements at public meetings which might be supposed to be slanderous or libellous should be liable—for what? Not for the words spoken by them, but for words reported. He was happy to say that reliance could generally be placed on the accuracy of the reports of the speeches which were delivered in that House, and of what was said out of it; but then it must be remembered that reporting was at present under the restraint that operated on the proprietors of newspapers. A reporter must be a highly educated man, and it was well known that many of them were persons of the highest possible attainments, and some of them were members of the legal profession. Reporters were better judges of what constituted a libel than a person who spoke under excitement at a public meeting. When a man littered a libel in the heat of discussion at a public meeting there existed the means of correction, for the statement might he immediately contradicted;—the slander might be answered on the spot; and he had known many instances in which that had taken place, even where the meeting was notoriously packed. But how did the grievance arise? Why, by the publication of the report; because the report reached the public far beyond the meeting at which the slander was uttered. The grievance was therefore far more in the publication than in the utterance of the slander? It might be almost impossible for the person libelled to reach the author of a slander, if the publisher of it was to have perfect indemnity. No man valued the freedom of the press more sincerely than he did, but he saw danger in the proposed alteration. We had a press which deserved all the encomiums that had been passed upon it; but there was a difference between freedom and licence, and if they removed all responsibility on the part of the publisher, in his I opinion they would open the door to a class of newspaper proprietors lower than the present. They might depend upon it, 1732 that freedom was not an accident, but a privilege which could only exist by being preserved within due restraints. He loved freedom. Tory he was; no one could show him the occasion on which he did not defend freedom. But they should not forget that freedom—that liberty generally perished by its own excess. Therefore was it that he looked with much suspicion on the principle of this Bill, and trusted that if the Bill passed a second reading that it would be referred to a Select Committee; or that else the Committee of that House would thoroughly investigate and consider the various principles contained in it, so that whilst endeavouring to extend, they might not destroy, the freedom of the press. It would be difficult to preserve individuals from abuse that might arise from the licence of the press, if there was no law to prevent the conductors of newspapers from putting reports into the mouths of speakers which were totally inaccurate. That reporters should be perfectly accurate was impossible. It would, therefore, be a great hardship that any speaker should be liable to an action for a false report. A free press was one of the most powerful instruments for preserving individual and collective freedom; but, if it were under restraint or in the hands of a Government, it might be a most effective means of tyranny. He (Mr. Newdegate) looked with the greatest suspicion on the clause which proposed that a Government officer should decide whether an indictment would lie or not, instead of that primary act of jurisdiction being left to the proper tribunals of the country. Let them look across the Channel, and stake warning from the position of the press in France and in Spain. In those countries the press was used against the people. They could not be too careful of the manner in which they dealt with the law which wholesomely regulated the press, whilst at the same time it preserved its liberty, lest both the law and the press should degenerate from their high tone and character. He had spoken strongly; but he objected to the principle of the measure, oh the ground, first, that he saw in it danger to the freedom of discussion; secondly, to the freedom of individuals; and ultimately, he feared, by encouraging excess, to the freedom of the press itself.
said, there were two evils which the hon. Gentleman the Member for North Warwickshire chiefly appeared 1733 to dread; but these were carefully provided against by the Bill. The first was, that libels might be put into the mouths of speakers by the reporters; but the Bill declared that unless the report was a faithful one the paper publishing it should not be protected. Again, that hon. Member said that if a man uttered slander at a public meeting another speaker might get up and answer him, but the libel would still be published in the newspaper. Well, the same protection was afforded by the Bill in the case of a libellous report, because it expressly required that the answer sent to the editor by the person aggrieved must be inserted in the newspaper in which the report had appeared. The hon. Gentleman had told them to look at the press of France and Spain, and certainly the more they looked at it the less they liked it; but what had happened in those countries did not, he thought, justify them in placing our own press under oppressive restrictions.
§ MR. THOMAS CHAMBERS
agreed with the hon. Member for North Warwickshire in thinking that the utmost care was required in dealing with this subject. There was no conceivable engine capable of being employed for the purpose of inflicting wrong on private character comparable in power to the press, and its power had for many years been increasing in a geometrical ratio by reason of the immense multiplication both of newspapers and of their readers. At a public meeting a man might, in the heat of debate, say something which it would have been better to leave unsaid, but it passed away like breath in a moment, and the wound was soon healed—if, indeed, any wound was given at all, for the person concerned might not be present But the mischief done by those fleeting words, evanescent as it would probably be, was made permanent when they were circulated far and wide by a newspaper published and sold for a profit. Before they removed the present restraints it was necessary first to prove there was a grievance. He did not think that it had been proved that there was. He agreed in all the compliments that had been paid to the press; he would bear personal testimony to the admirable manner in which, as a rule, the press of this country was conducted; but it was worthy of consideration whether its high tone was not due—partly at least—to the wholesome restraints of our law, and whether it was desirable to relax those re- 1734 straints upon so formidable an instrument both of good and of evil, merely because some newspaper proprietor, who was generally a rich man, might now and then be brought into a court by some not very worthy individual to answer for an alleged libel. Let them diminish the securities under which the freedom of the press was exercised and they would open a door, which they might not afterwards be able to close again, to dangerous excesses. He did not know whether the representatives of the press generally complained of any grievance in this matter, or whether they had petitioned that House to relieve them from any alleged unjust or oppressive operation of the present law. If that were so, no doubt the question should be brought before the Legislature. But the first part of this Bill required the gravest consideration, depriving a man, as it did, of the right to sue for the redress of a wrong done to his reputation, which was, in most cases, a far greater injury than an assault upon his person. The provisions of the second part of the Bill were, he thought, excellent. As to the third part, he agreed with the Solicitor General that it ought not to depend on the will of a Government officer whether or not one man should be entitled to indict another for libel. Supposing one person published a gross libel on the character of another in order to extort money. [An hon. MEMBER: That case is excepted from the measure.] He was glad that it was excepted; but there were many other motives for publishing gross libels equally wicked, and he could not see why a man should not have as free a remedy in a court of justice where his reputation was assailed as he had when violence was offered to his person.
§ MR. ROEBUCK
said, that it appeared that no one had any objection to fix the liability for a slander uttered at a public meeting upon the speaker; but great objection was entertained to relieving from responsibility the proprietor of a newspaper if which it might be reported. Whatever the hon. Member for North Warwickshire (Mr. Newdegate) said, he said in so solemn a manner that they became alarmed; the bias of their minds was disturbed by the solemnity of his utterances. Let them, however, look at this question like men who were not terrified out of their wits. Who was most likely to bring an action against a newspaper? Was it the honest man? Certainly not. 1735 An honest man against whom a libel had been published would go to the proprietor of the journal in which it had appeared, and say, "I have been libelled. Give me the opportunity of stating the facts of the case;" and if the newspaper refused to publish his answer, it would still, under this Bill, be liable; but if it inserted the answer, and afforded the person libelled the means of defending himself, it would not be liable. But what did the dishonest man do? He rushed to an attorney, who at once wrote to the proprietor of the paper for the name of his solicitor, in order that he might servo process, and, without asking for any explanation or contradiction of the false statement, immediately commenced proceedings. If the newspaper proprietor offered to insert an apology, the pettifogging attorney would say that that was not the time; they must wait. The meaning of this was, that they were to wait until costs had been incurred, otherwise, he would got no pickings, no fees, no bill. When, however, the matter came on for trial, he was "quite open to an arrangement." That meant that the poor unfortunate newspaper proprietor should make an arrangement by which he should pay all the costs. What possible harm could happen to society from the passing of this Bill? That was the real question for the House to consider. He had heard a great many platitudes uttered in laudation of the press, and he could not altogether acquit the hon. and learned Member for Marylebone (Mr. Thomas Chambers) of having uttered some against it. The hon. and learned Gentleman had talked about its terrible power. What was the meaning of that? Why, it meant a terrible good. Then the hon. and learned Gentleman said that publications had enormously increased, and not only that, but so also had their readers. What did that imply but that the greatest possible advantage was derived by the public from the press? In the very remarkable evidence given by the hon. Member for Leeds (Mr. Baines) before the Committee of the House of Lords on that subject, there was an enumeration of the various classes of public bodies the proceedings of which the newspapers were accustomed to report. There were—"1, both Houses of Parliament; 2, Courts of Law and police courts; 3, municipal corporations, and bodies of commissioners for objects of local administration, protection, and improvement; 4, Poor Law guardians; 5, vestry meetings; 1736 6, Parliamentary, municipal, and other elections; 7, meetings of magistrates for county and other business; 8, county, borough, or parish meetings convened by sheriffs, mayors, or other authorities; 9, meetings of public charities, or institutions benevolent, educational, reformatory, and religious; 10, public meetings to promote political, legal, and social reforms; 11, meetings of mechanics' institutions, and philosophical societies, the Society of Arts;12, public lectures like those on the supply of cotton, adulteration of food, &c.; 13, meetings of railway proprietors; 14, meetings of banks, and other joint-stock companies; meetings of Chambers of Commerce." Was there not immense advantage to the public in the reporting of these meetings? And how was it done? It was done by reporters, whom the hon. Member for Worth Warwickshire (Mr. Newdegate) himself admitted must be educated men, and whose only desire was to give faithful reports of what took place. These reports the editor of a daily paper had no time to revise. He must therefore either exclude all accounts of such proceedings, or run the risk that in some rare instances the malignity of some individual might do injustice to the character of another. But, even if such a thing occurred, the very weapon that inflicted the wound healed it the day after the slander had appeared—the very journal which had circulated would give equal publicity to its contradiction, and therefore no mischief was done to an honest man. Under these circumstances, the House would not have much difficulty in assenting to the second reading of this Bill. When the Bill got into Committee, every clause ought to be carefully considered; but the measure was not one to be referred to a Select Committee. Did the hon. Member for North Warwickshire think that was the first time that that question had been considered? Why, it had long been under consideration, he might almost say for centuries; all their great writers had given their opinion upon the matter, and it was now ripe for decision. The House should decide it on its own responsibility, and when it had done so he thought they need fear no danger to society.
§ MR. BAINES
said, it seemed to him that that was a case in which there was a claim the most irresistible for plain justice to the most important institution of this land—namely, the press. Gentlemen connected with the press were now liable to 1737 heavy punishment for not doing that which it was notoriously impossible that they should do—that was to say, for not examining reports, often brought in at the last moment before publication, in order to eliminate from them whatever might be defamatory. It was said that slander ought to be punished. He admitted it; but who was the slanderer? The hon. and learned Member for Marylebone (Mr. Thomas Chambers) argued that it was not the utterance by the voice that did the mischief, but its publication in the newspapers. He said No: the man who first uttered it first published it to the world. It was true a report of what was said was printed, perhaps on the following day; but one very important consideration must be borne in mind—namely, the effect produced upon what was said at a public meeting by the known fact that the speeches to be delivered there would be published. The man who uttered a speech knew that it would go to all the world, and he therefore measured, regulated, and moderated the statements which he made. But that was not all. It was quite possible that a libellous statement uttered at a public meeting might be distorted and magnified to such a degree as to do infinitely more harm than if the actual words were given. But the following day the actual words were known. Then the man who had been libelled came forward, sent a statement for the correction of that libel to the newspaper, that statement was inserted, and thereby the evil that had been done was redressed. "Without the newspaper they could not have that, because that which had gone forth on the wings of rumour they could not identify or refute; but when it appeared in the press, they could ascertain what it was and refute it. The proceedings of public meetings, then, were immensely modified and improved by the knowledge that they would be published to the world, and by the fact that they were published by men who had no malice, and no other interest in the matter except to give correctly to the world what was said. Those men were not the guilty parties. The Legislature chose to punish, not the man who uttered the slander, but the man who published it. That reminded him of the ancient Persian law under which great persons were not punished, save by proxy, for their errors. Cyrus was too great to be punished, and therefore they had whipping boys as deputies. The condition of the proposed exemption—namely, 1738 that the newspaper should be required to publish a refutation of the libel which it might have been the innocent means of circulating—the proprietors of newspapers were Milling to accept. He believed that many proprietors of the provincial press had petitioned for the adoption of a measure like the present; and he was glad to find, from the very liberal speech made that day by the Solicitor General, that there was now every prospect of ail absurd and unjust state of the law relating to the press being at length remedied.
§ MR. MILNER GIBSON
said, that as the House seemed willing to accord a second reading to the Bill, he would not make any remarks on the principle of the measure. But there was a point of some importance raised by the learned Solicitor General on which they ought to have some clear understanding. That hon. and learned Gentleman said that, although prepared to give newspaper proprietors an immunity from prosecution in certain cases, he thought it would be necessary to define very carefully those public meetings in regard to the speeches delivered at which the proprietors of newspapers should enjoy an immunity for the publication of faithful though slanderous reports. Now, for himself, he believed it would be found extremely difficult to have any other definition than that contained in the first clause of that Bill—namely, that the exemption from liability should extend to the reports of all speeches at all public meetings lawfully assembled for a lawful purpose. He spoke with the more confidence on that subject because, when the matter was brought some time since before the House of Lords, a clause was introduced into the late Lord Campbell's Bill laying down precisely what were the kind of meetings the reports of which should be privileged. Lord Lyndhurst objected to the definition then proposed, and actually suggested the very words used in the present Bill—namely, "any public meeting lawfully assembled for a lawful purpose." That definition seemed to be accepted at the time as the best that could be devised if the thing was to be done at all.
§ SIR GEORGE BOWYER
said, he entirely concurred in the part of the Bill which brought slanderous expressions used at public meetings within the law of libel. At present what a man said against the character of his neighbour at a public meeting was actionable only if it came within the law of slander, which was of 1739 a very narrow description; but if he said anything which, if written, would be actionable, but which was not actionable if spoken, he was entirely exempt from responsibility. That was a great abuse, because the man who spoke slanderous words knew perfectly well that there were other persons present who were writing them down. Therefore, as he spoke the words knowing that they were going to be published, he ought to be liable the same as if he wrote them with his own hand. But he (Sir George Bowyer) felt considerable doubt whether a paper publishing slander ought, in every case, to be exempt from responsibility. The editor of a respectable paper not only ought to, but did exercise, he believed, a certain discrimination in publishing the reports of speeches, and if he saw anything in a speech that was decidedly of a slanderous nature, and which ought not to be published, it was his duty to hold his hand, to take care what he did about it, and refrain from publishing attacks upon private character. It might be said there was no occasion to make the newspaper editor or proprietor liable, because the remedy ought to be against the person who uttered the words at the meeting. But the injured person might not always be able to find the actual utterer of the slanderous words, even though his name might be given in the newspaper. Under those circumstances, the remedy against the man who spoke a slander might be, in many cases, insufficient. Even if he were discovered, he might be found to be "a man of straw," against whom it would be absurd to bring an action, inasmuch as he would be unable to pay damages in the event of the verdict being against him. But then it was said that the proper remedy for an honest man to have recourse to was to apply to the editor of the newspaper in which the slander was published, and to call upon him to contradict it. It must, however, be borne in mind that a great many persons might read the slander who might never see the contradiction, and who, even if they did see it, would not be disposed to attach to it much importance. Besides, people would rather read a slander than a refutation. It was once said by a witty French writer—he believed Madame De Sevigne—that some person to whom reference was made had so little credit for telling the truth that no one would believe him even though he were to speak ill of his neigh- 1740 bour. It was clear that slander was a thing which found very ready acceptance; and he (Sir George Bowyer) was afraid that in the cases in which contradictions were published in a newspaper, there would be some persons who would not look upon the denial as a sufficient proof that the slander was without foundation, He therefore was of opinion that it was right the proprietors of newspapers should be placed under some sort of restraint with regard to the publication of matter tending to involve private character, and that they ought not to be absolved from all responsibility for such publication, even though the slander were originally uttered by a speaker at a public meeting. That, however, was a point which could be discussed in Committee, and he hoped it would receive due consideration, for the publishers of newspapers wielded such enormous powers that it would lead, he was afraid, to great inconvenience if they were to receive the complete immunity which was proposed.
§ MR. SYNAN
said, that newspapers were under a necessity to report the proceedings of public meetings lawfully constituted, and they were therefore, he thought, entitled to some protection. Freedom of the press in this country was not, as had been advanced, a matter of privilege, but a matter of right.
said, that as at present advised, he could see no objection to the 1st clause of the Bill, which exempted, under the conditions stated, accurate reports of public meetings. Upon the 2nd clause he should withhold judgment, as he was not at present disposed to assent to making words spoken subject to the law of libel. That clause required serious consideration, as they all knew the great difficulty of proving the exact words uttered, and the temper and tone in which they were uttered. They also knew something about standing on public hustings. Strong language was there used sometimes. Was a man who used strong language on the hustings to be liable to an action for libel? That part of the Bill, however, could be dealt with in Committee, although he confessed that at present he did not like the clause. To extend the law to words spoken was taking a great step, and he believed that on the whole it would lead to more inconvenience than the contrary. He saw no harm in absolving the press if the answer to the libel appeared in the same part of the 1741 paper. It was an immense advantage to have everything published, and they might go a little out of their way to relieve those who were at the expense of publishing from penal consequences.
§ MR. WALPOLE
rose merely, in consequence of the observations of his right hon. Friend and of the learned Solicitor General, to suggest the advisability, in order that the wording of the two clauses referred to might be put into the best shape for discussion in Committee, that after the second reading of the Bill it should be referred to a Select Committee, where the clauses could be better dealt with.
§ SIR COLMAN O'LOGHLEN
agreed that it would be better to remit the consideration of these clauses to a Select Committee at once.
§ Bill read a second time, and committed to a Select Committee.
§ And, on March 20, Select Committee nominated as follows:—Mr. Secretary WALPOLE, Mr. SOLICITOR GENERAL, Mr. MILNER GIBSON, Sir ROBERT COLLIER, Viscount AMBERLEY, Mr. HENLEY, Mr. LOWE, Mr. LAWSON, Mr. ROEBUCK., Mr. SANDFORD, Captain GRIDLEY, Mr. SULLIVAN, Mr. BAINES, and Sir COLMAN O'LOGHLEN:—Five to be the quorum.