DEFAMATION AND LIBEL. (Hansard, 18 July 1843)

Lord Campbell
remarked, that at present the proof of the truth of a libel was an absolute bar to a civil action. This required change, because if one man libelled another by imputing any corporal defect, or by reviving a long-forgotten and heartily-repented offence, it was not fit that the proof of the truth should prevent the plain- 1253 tiff from recovering damages. At the same time, he was of opinion that the right of the party ought to be barred, if it could be established, not only that the libel was true, but that it was of importance to the public that the truth should be made known; he had, therefore, at first inserted the words, "of public benefit that it should be published," in the third clause; but, upon consideration, possibly their Lordships might prefer these words, "that the public had an interest in being informed of the facts stated in the said imputation."

Lord Brougham
admitted that proof of the truth, instead of being a bar to an action for libel, ought to be left to the jury. At the same time, he did not like the terms his noble and learned Friend wished to substitute; for it might be said, that the public had and took a deep interest in all matters of slander and defamation — the more discreditable the better and it was remarkable, also, that the female sex felt a more lively interest in such matters than the male sex. They delighted in erecting themselves into censores morum, and in exercising the duties of the office with the utmost sincerity.

The Lord Chancellor
thought, that on the face of the bill it ought to appear what sort of "interest" was intended as well as who was meant by "the public."

Lord Campbell
observed, that it was also of importance that, in a criminal prosecution for libel, proof of the truth should be admitted, although it was now excluded. He preferred the words he had originally inserted in the clause as regarded the public benefit. It was of public benefit that cases like one lie had read some time since in the Times newspaper should be exposed, and that the truth should be held an answer to any criminal prosecution. He alluded to the case of a man who advertised for governesses, appointed them to meet him at a particular house, and subsequently employed all his arts to seduce them.

The Lord Chancellor
suggested an amendment, to enable the jury to decide "how and in what manner it would so prove beneficial to the public."

The Lord Chancellor
in the 6th clause, introduced an amendment to make it more extensive.

Lord Brougham
saw the necessity of the change, in order to render the bill more effectual as regarded parties threatening to libel others, with a view of extorting money, &c. The most detestable trade in 1254 slander had thus been carried on by some of the most infamous members of society; but he had pointed out to his noble and learned Friend (Lord Campbell) a dozen cases which were not included by the words of the clause as they originally stood —one of these cases he had known to occur, in which a Member of the Legislature had been threatened with a libel, if he did not, in the course of a speech, refer to and quote a particular work. In the same way threats had sometimes been held out that particular parties should be libelled at large public meetings, if they did not support a repeal of the union with Ireland.

The Lord Chancellor
observed, that every petition presented to Parliament would be a proceeding in Parliament within the language of the act, and, however scandalous, would be under its protection.

Lord Campbell
said, that this was a most important clause. It was founded upon the tenth proposition of the recommendations of the committee on the law of libel, which ran thus:— That no action, indictment, or information shall be maintainable for a faithful report of any proceedings of courts of justice, or before magistrates acting in the discharge of their duty, or of any proceedings in either House of Parliament, at which strangers have been permitted to be present, provided that such proceedings are not of such a nature that a report thereof would be contrary to good maners In practice all fair reports of legal proceedings were sanctioned, not only where there had been final judgment, but on ex parte applications. The Lord Chief Justice of the Queen's Bench was in favour of the clause as it stood, and was of opinion that if a report were faithful, even in ex parte cases, the representation would be viewed as ex parte, and as likely to be partial, so that the evil effect would be counteracted. As to police reports, their legality had long been doubted; but the police magistrates were of opinion, that the benefit. arising from them exceeded the evil. In the case of Curry v. Walter, the principle he contended for had been recognised. The noble Lord also quoted the authority of Mr. Dobie, the eminent solicitor as favourable to his view. He appealed to their Lordships whether they did not expect that 1255 their proceedings should be reported correctly in the public journals? And if so, whether publishers of papers should be exposed to any risk in that course? No doubt, a Member of Parliament attempting to abuse the privileges of Parliament, for the purposes of slander, was the worst of slanderers, and he certainly should endeavour to secure the public against such a gross abuse. No one could question that any Member of Parliament, for instance, who published his own speech containing statements injurious to private character, without any answer that might have been given to it, would show that he had not had a bonâ fide motive. But faithful and bonâ fide reports of Parliamentary proceedings, why ought not they to be as much protected as similar reports of legal proceedings? The evidence before their Lordships in the Townshend peerage case, why ought the publication of that by the papers to have been attended with greater risk than had the case occurred in the ordinary courts of justice? He proposed, then, to assimilate the law in respect to Parliamentary proceedings generally to the law as regarded legal proceedings. This would not sanction unfair and unfaithful reports, but only those which were fair and faithful. As to petitions, he understood the allusion to the unfortunate case of the unworthy petition presented in the other House against that most honourable, amiable, and estimable of men, the Lord Chief Justice of the Common Pleas; an event deeply regretted, and against the recurrence of which every precaution had been taken.

Lord Brougham
was decidedly of opinion that Parliament could not discharge its high functions without the most entire freedom of debate. In proportion, however, as there should be an absolute and unrestrained privilege within the walls of Parliament for saying whatever any Member might think proper to say, restrained only by his sense of duty; so, in the same proportion, was the necessity absolute, that there should not be given an unrestrained power to the press to publish everything that was said in Parliament. There was no fear of the proceedings of Parliament not being published. Practically, therefore, there was no necessity for such a provision as this. In the course of all his experience at the bar, he never remembered a single prosecution or action for the publication of a speech delivered in Parliament. In the case of Wright, publisher, reported 1256 in 6 Term Reports, an action was brought by Horne Tooke against Wright, for printing a report of proceedings in Parliament which reflected upon Mr. Horne Tooke. The Court of King's Bench held, that it was a privileged publication, because it was good for Parliament itself and for the country that the publication should be made. But the court never held, on the contrary, the rule was the other way, that any indemnity whatever should be given to the publisher for printing everything that was said in Parliament. It was the only check upon Members of Parliament that the publication should rest on the responsibility of the publisher. With respect to police reports, he thought they did much more good than harm: at the same time he could mention a case which would show that there might be a great abuse of that description of publication. A certain newspaper or periodical work which had slandered a person was prosecuted, and a judgement was obtained against the publisher. The matter was compromised, upon condition that no further libellous remarks were to be published. The party who had furnished the publisher with the slander, came and proposed that the latter should publish something more. No, said the publisher, we will not publish this, because we are under terms; but if you will go to a police magistrate and make your statement, we will take care to have a reporter there, and he will furnish us with a report of every word you say, and that we will publish. Now he (Lord Brougham) should be very loath to give any security to such a person as that.

Lord Campbell
said, it was impossible to frame any law that might not be abused; but he thought the words which he proposed to introduce, that there should be no prosecution where the publication was "without malice," would sufficiently narrow the clause to prevent it extending its protection to improper publications.

Lord Brougham:
What proof could you have of it?

The Lord Chancellor:
Actual malice could hardly ever be proved, and the affirmative is on the injured party.

Lord Campbell
thought no jury could hesitate to find the existence of actual malice in the cases contemplated. Surely, as in the case of "Rex v. Creevey," a Member of Parliament ought not to be punished for a merely bonâ fide publication of his declarations explanatory of his own conduct.

LordBrougham:
Suppose a person 1257 broaches a treasonable topic in Parliament, suppose he recommends assassination of a monarch?

Lord Campbell:
Why, if my noble and learned Friend considers it possible treason can ever be spoken in Parliament, I will introduce a word to meet it; but my words are framed so as to exclude "seditious, blasphemous, or indecent language."

Lord Brougham:
Private assassination might, perhaps, be recommended in Parliament.

The Lord Chancellor
was afraid that this clause would militate against the standing orders of their Lordships' House. With respect to reports of the proceedings at police-offices, he had conferred with a highly respectable individual who had great experience of the practice of those courts, and he assured him (the Lord Chancellor) that practically no inconvenience resulted from those publications. The reporters exercised a sound discretion, and it was only in extraordinary cases that any interference of the court was called for to restrain the publication of the proceedings.

Lord Campbell
saw no necessary opposition to the order, but very much doubted the wisdom of maintaining rules, the violation of which was not only tacitly allowed but strongly desired by their Lordships The sooner they were done away with, he thought, the better, seeing that the Houses of Parliament possessed quite sufficient power to prevent intentional or unjustifiable misrepresentations. The noble and learned Lord, adverting to the authority of a learned judge, alleged to be against him on some of these points, remarked, that, although he honoured and respected that learned judge, he had the less regard for his authority on the subject because of his refusal to attend and express his opinion before the committee, which had been honoured by the attendance of three Lord Chancellors, the Lord Chief Justice, and the Lord Chief Baron, and he regretted that a puisne judge should have fancied such attendance would have been in any way derogatory to his dignity.

The Lord Chancellor:
No, no.

Lord Brougham
said, the subject of Parliamentary privilege was much too large to be discussed incidentally; but he concurred with the late Sir Samuel Romily in thinking that the ancient orders of either House should be touched most diffidently and delicately, as having been the result of long experience and adapted to observed necessities. Nor was there any class of 1258 these orders which it was more important to preserve than those which related to the publication of debates and the admission of strangers, the power of preventing which rarely required to be exercised; but the knowledge of its existence alone did away with the necessity. And he had heard eminent friends of his in France avow their persuasion that to the absence of such regulations in the legislative assemblies of that country, and the consequent acquirement on the part of the public of a sort of inteference with their debatings, were to be attributed most of the evils of the revolution. Notwithstanding the case of Mr. Creevey, and the extreme reluctance he felt to dissent from those who entertained a different opinion, he was obliged, though reluctantly, to vote against the clause.

The Lord Chancellor
observed, that it was not from any sense of wounded dignity as his noble and learned Friend (Lord Campbell) had supposed, that the learned judge, to whom he had alluded, had been unwilling to appear before the committee; but because he considered it unfit that judges should be examined as witnesses upon such a question. He (the Lord Chancellor) should vote against this clause.

Lord Campbell
did not feel authorised to abandon the clause in the absence of the Lord Chief Justice.

Lord Campbell
said, he proposed to omit the 13th and 14th clauses as unnecessary. It was somewhat extraordinary that the whole committee should have laboured under a mistake, which was apparent in their report, in supposing that the security given by the proprietors of newspapers extended only to the Stamp duties. It had been suggested by a respectable editor of a newspaper, that for the suppression of libels in such publications, where the nominal proprietors were men of straw, a right of action might be given against the sureties of the paper, who might be required to give security to pay damages and costs. It was imagined that the 6th and 7th William 4th had repealed the old law, and that the only security required was for the stamp duty; but upon further inquiry it turned out that the act of 11 George 1st., c. 73, was still in existence, which extended the security to the damages and costs in cases of action for libel against the papers, 1259 and he found, from a copy of the recognizance entered into at the Stamp office, that it held the sureties liable for all damages and costs recovered by parties in any action for libel against the newspaper.

The Lord Chancellor:
It is never acted upon, and is not known.

Lord Campbell:
The public then will now be aware that such is the nature of the recognizance; and that in the case of a newspaper which lives upon slander, if the nominal proprietor be incapable of paying the damages and costs of an action, the injured parties may sue the sureties, and, by the existing law, the full sum must be kept up.

The Lord Chancellor:
The fact is not known; for I have sometimes said to the injured party, "Why not bring your action? "and the answer has been," They are not worth powder and shot."