LAW OF LIBEL. (Hansard, 1 June 1843)

Lord Campbell

said, he had been directed by the committee appointed to inquire into the law of defamation and libel to present its report, and the evidence taken before it. In moving that these papers be printed, he hoped their Lordships would allow him to state the course which the committee had adopted, and the conclusions at which they had arrived. The committee had devoted much time and labour to the subject; they had examined an ex-chancellor, two of the chief judges of the supreme courts in Westminster-hall, barristers, and solicitors; they had examined French lawyers and Scotch lawyers, police magistrates, booksellers, authors, the editors and conductors of some of the most respectable newspapers on both sides of politics, in London and the provinces, and he ought, in justice to them, to maintain that it was the unanimous opinion of all who had attended the committee,—that the editors and conductors of newspapers on both sides displayed the greatest zeal for the purity of the press,—and a readiness to concur in any measures for putting an end to the practice of encroaching upon the sanctity of domestic life, and of attacking private character. Upon the evidence the committee had come to the conclusion, that it was not expedient to interfere with public prosecutions for libel. They found in the law books various dicta and decisions which might be regarded as detrimental to the liberty of the press; but then they considered the mildness displayed by successive administrations on this subject; and that from the period that his learned Friend the Lord Chancellor had been Attorney-general, there had been no complaints of public prosecutions. His noble and learned Friend on the Woolsack had set a good example, and he was happy to say it had been followed. He himself claimed no peculiar merit on this ground; but he had been Attorney-General for above seven years, and he had only filed one criminal information. In that case he considered that the public peace required it. It was against Mr. Feargus O'Connor; and when he conducted the prosecution, he requested the jury to acquit the defendant, unless they believed that his direct object was to incite to insurrection and plunder. While this was the opinion of the committee with respect to public prosecutions, it appeared to them that there were a considerable number of practical evils in the law of libel that required instant remedy. As the 1230 law now stood, if defamatory words were spoken, however calumnious they might be, or however public the occasion on which they were spoken, unless they imputed an indictable offence, or imputed to a party that he was not competent to carry on his business, or that he had an infectious disease, they were not punishable; but if they imputed want of chastity in a lady of the highest character and rank, or if they stated that a man was without honour and courage, the law afforded no remedy whatever. The committee, then, had come to the conclusion that there should be a remedy for slander spoken, as well as in writing. The Scotch lawyers were astonished how the law in England on this matter had remained down to the middle of the nineteenth century. There was this distinction with respect to indictments and civil actions brought for libel, that when an action on the case was brought to recover a compensation in damages, the defendant may justify the truth of the facts alleged, and then the truth is an absolute bar to the plaintiff's obtaining a remedy; but upon an indictment for libel, the defendant cannot allege the truth of it by way of justification. Under this rule, cases of hardship sometimes arose. Errors may have been committed by a party, and may have been long atoned for and forgiven. It seemed a reproach to the administration of justice that in such cases a man's forgotten misconduct, or the misconduct of a relation, in which the public had no interest, should be wantonly raked up, and published to the world, on the ground of its being true. A great wrong here was committed, and no remedy was obtained. It appeared at the same time, that civil actions were often brought most vexatiously, and merely for the sake of the costs. It had been proposed, that the tender of an apology might be offered in evidence, by way of bar to the proceedings, and that the plaintiff, after the tender of an apology, should proceed on the risk of the jury thinking the apology so tendered sufficient. But the conclusion arrived at by the committee was, that the apology should not operate as a bar to the action, but should be given in evidence by way of mitigation of damages; and that the jury should look to the spirit of the apology, and consider whether it fairly made out ground for a mitigation, or did not operate as it might in some cases, as an aggravation, calling for more exemplary damages. With regard to the tender of amends, the conclusion 1231 of the committee was, that in every case evidence on this point ought to be admitted, and that if the plaintiff proceeded after such a tender had been made, he must do so at his own peril. It was stated in evidence by several respectable journalists, that, in spite of the greatest vigilance and caution, it sometimes happened that objectionable paragraphs were copied from other journals. Respectable people, when these paragraphs reflected on them, were in such cases satisfied with an ample apology. But there were base characters who, it was stated, sometimes sent these paragraphs themselves, and nothing would satisfy such persons but to urge on the trial with the view of getting costs. The. committee, under these circumstances, had come to the conclusion, that when an involuntary error had been committed, and an offer was made to apologise, the defendant in that case should be at liberty to pay a sum of money into court; and if the defendant was not satisfied but went on, the verdict with costs should go for the defendant, unless the jury were of opinion that the sum offered was insufficient. Such an enactment would, as he believed, give much satisfaction to respectable journalists, and be attended with great public good in checking frivolous actions for libel. The committee were struck with the monstrous anomaly noticed by all the witnesses that in prosecutions for libel, the truth should be entirely excluded in justification, although the indictment charges the libel to be false, and that it should be frequently said, the greater the truth the greater the libel. This proceeded on the very false maxim, that the libel was only to be condemned, because it tended to a breach of the peace. The fact was, that the libel was to be condemned as a private injury to a private individual; that a wrong was done, and an injury inflicted upon a person who was entitled to protection; and the person who did that wrong ought to be punishable by law. Libel was a crime, as a theft was a crime, or as assaulting an individual was a crime, and the party libelled ought to have his remedy at law for the injury sustained. It appeared to the committee, and they had reported accordingly, that if there was nothing in the publication complained of, but what was true, and what the public ought to be made acquainted with, the defendant ought not to be precluded from bringing evidence to prove its truth, or that it was matter of useful intelligence. The recom- 1232 mendation of the committee, therefore, was that the proof of truth should in no case be excluded, but that it should not be an absolute bar in criminal, any more than in civil proceedings. This would leave the jury, under the direction of the judge, the power of deciding (the plea of truth being proved) whether there was or was not proper occasion to publish it; and if the jury felt that the object of the party publishing was a malicious one—was that of raking up what ought to be forgotten, and of making notorious personal infirmities in which the public had no interest—of attacking the feelings of a family by publishing what may be true, but ought to be forgotten, concerning any member of it— if* this were the opinion of the jury, they would find the defendant guilty, and he would be punished accordingly. The next subject was the classification of libels. Great complaint had been made, that all libels, however varying in criminality, were in point of law considered the same offence, and liable to the same punishment. The committee proposed to divide them into three classes. The first and most aggravated was a class of offences so heinous and atrocious that, morally speaking transportation itself would be no inadequate punishment for them: he meant where an attempt was made to extort money by the threat of libelling an individual or a member of his family, and the libel was published because the money was not paid. The proposal of the committee was, that the party convicted of this offence should be subject to fine, and imprisonment for three years, accompanied with hard labour. The next class was where the libel published was false, and the libeller knew t to be false. This was also a most aggravated offence, though divested of one of the worst features of the offence he had before described. They proposed that for this the punishment should be fine and imprisonment for two years. The third class was, that in which it was not proved that the defendant knew the libel to be false, though it was published with an intention to injure, and maliciously. It was proposed, that the punishment for this should be fine and one year's imprisonment. The committee wished to establish a fourth class, the punishment for which should be fine without imprisonment; but they had not been able to define this fourth class, so as not to exclude those offences which the committee thought ought, at the discretion of the court, to be punished with imprison- 1233 ment as well as fine. The next subject which the committee had considered was the publication of the proceedings of courts of justice, and of the two Houses of Parliament. With regard, first, to the publication of the proceedings of courts of justice, it had been held by several decisions, that when the report of those proceedings was fair and bonâ fide no action could lie for the publication. A different doctrine, however, had sometimes prevailed, and it had been questioned whether such a publication was legal. That doubt ought to be set at rest. With regard to publishing the proceedings of the two Houses of Parliament, it had been found expedient, that they should be made known to all the world. Accordingly the publication was now permitted with the sanction of both Houses of Parliament. Was it then fair, that the proprietors of newspapers should be subject to have actions brought against them for publishing what appeared to be a fair report of the proceedings of Parliament? The committee were unanimously of opinion that it was unfair, and that it ought to be declared that the conductors of all publications should not be liable to prosecution for publishing fair accounts of the proceedings of the Houses of Parliament at any time when strangers were allowed to be present. It was at all times competent for the Members of either House to move that strangers be excluded when the proceedings could not be reported, without a breach of privilege. Then with regard to the publication of exparte police reports, about which doubts had been expressed, the committee had concluded, after an examination of some police magistrates, that as it was known, that these proceedings were exparte, and did not necessarily injure private character, it was of public advantage that these proceedings should be published. The publication was an auxiliary to the police, and it led to the discovery and detection of criminals. He wished it, however, to be distinctly understood, that the committee excepted those extraordinary proceedings which were wholly ex-parte and wholly unwarranted, which took place when persons went before magistrates to ask what they called advice, and which proceedings ought not to take place, because they were cases in which the magistrates had no jurisdiction. Under the pretence of asking advice, very often statements were made of a most libellous character, and were often made only for the purpose of extorting money. The magis- 1234 trates, he repeated, in such cases had no jurisdiction, and could confer no privilege and no immunity. There was another subject, which came before the committee —namely, the proof which ought to be given, in order to establish the responsibility of a party when the publication was made by his agent. It. had been held, and this was considered a harsh decision, that the purchase of a copy of a book or newspaper at the shop or office of the defendant, was not only prima facie, but conclusive evidence of the publication and of the responsibility. The defendant was not allowed to prove by evidence, that he knew nothing of the contents of the publication, and could not by possibility be aware of it; and that the libel had been printed or sold against his express orders. The committee proposed, that after a prima facie case had been made out, it should be competent for a defendant to prove, that the publication was without his orders, or contrary to his orders, and, that under the circumstances, it was impossible for him to have directed or sanctioned it. Another point to which the attention of the committee had been directed, was the grievance which arose in many cases where a party, instead of bringing a civil action proceeded by a criminal prosecution; if he brought a civil action he was liable to costs, and the party against whom he proceeded improperly, was indemnified by those costs, but if he proceeded by indictment or criminal information, the party who was unjustly prosecuted was saddled with heavy costs, and had no remedy whatever. The committee proposed, that in all prosecutions by indictment or criminal information for private libel, if there should be a verdict for the defendant he should be entitled to recover costs, to be taxed by the proper officer of the court. There was another subject to which the committee had directed their attention — namely, the course to be adopted when there was a series of trials upon the same indictment arising out of the same transaction. Should persons be permitted to publish any part of the proceedings until the whole of the proceedings were concluded? Judges had sometimes intimated and made an order that no part of such proceedings should be published until the whole proceedings were concluded; but of late years that mode had been departed from, and there was a general opinion that such orders were ineffectual. They could not be enforced. There would still be partial 1235 and surreptitious reports. The report of the committee adopted this opinion, and thought the publication should take place. In the case of Courvoisier, the publication of his trial during its progress had materially facilitated the conviction of that offender. The publication, then, of the proceedings during a trial was very advantageous; it was tantamount to enlarging the court and admitting all the public to witness its proceedings. It was proposed to render it lawful, while a trial was going on, to publish from time to time an account of the proceedings. It must always, however, be remembered that such a flagitious offence as publishing partial and improper reports, would render the parties making those partial reports liable to a criminal information. There was only one other subject he would mention before he concluded. He alluded to the conduct of those disreputable papers, some of which were published in the metropolis, though he would not name them. This subject had been considered by the committee, though they had not required the parties to come before them, as that would have been asking them to criminate themselves. But there were various publications, no one doubted, which were conducted on the principle of living by slander. He way sorry to say they laid their account with making money by taking away character and circulating the foulest libels. They set at defiance the parties they injured, and the way they did it was this— they entered the name of a mere man of straw as the responsible party at the Stamp-office, who had no property in the paper. If an action were brought and damages recovered there was no advantage gained. The party responsible had not a shilling on which to levy the damages awarded. If the party did not abscond he went to gaol, and the party who was injured had the poor satisfaction of keeping the scape-goat in prison. It was suggested as an effectual remedy for this enormous evil — by the manager of one of the respectable daily journals of the metropolis—that the security now given to the Stamp-office, to answer for the payment of the stamp duties, should extend to pay for all damages which a verdict of a court might give against any paper. No newspaper but must now give such security before it could be established, and it was suggested, that when the security should be made answerable for damages, and part of it appropriated to pay those awarded by a court of Jaw, that the security should still 1236 be kept up to its full amount. He had reason to believe that no respectable journal would make any objection to that suggestion. A journal was generally established either by a gentleman having capital of his own, and who could find no difficulty and could make no objection to give the required security; or if the newspaper were to be started by any respectable gentleman, who was not himself in possession of capital, but who had habits and abilities to conduct such a publication, he would have no difficulty in finding the required security. He conceived, then, that nobody would complain of such an enactment as repressing in the smallest degree free discussion, or as having any tendency to give a monopoly to any description of persons, or as preventing any person in the country, who might be desirous of it, from establishing journals to expound their opinions to their political admirers. It would be no hardship, and it would have the most beneficial effect of crushing those injurious publications, and putting an end to the in-famous system to which he had alluded. The report which he should have the honour to present contained propositions to the effect he had stated. He hoped when their Lordships should have perused it that they would approve of it. He hoped, too, that the public would think that they were served by the efforts of the committee; at all events, they might have the satisfaction of knowing that the investigation had caused no public expense, for of all the witnesses the committee had examined only one claimed remuneration. The committee thought he ought not to be remunerated, as he was living in London, had volunteered his evidence and was detained only half an hour under examination, and his evidence certainly was not the most valuable they had received. He proposed, after the report had been in their Lordships' hands, to frame a bill which he should have the honour to present to the House. Of course not only all of their Lordships who had not been on the committee, but also all the members of the committee, would be entirely at liberty to express any opinion they might think fit upon any portion of the bill. The report he should have the honour to present had not been dissented from by a single member of the committee; but the members of the committee were by no means pledged when they saw the provisions embodied in a bill not to object to any of which they disapproved. But he trusted that the subject, having been so thoroughly sifted and in- 1237 vestigated by a committee so numerous, so intelligent, and so laborious, who bad agreed, without dissent, to the propositions of the report.—he trusted the bill which was to be founded upon it would receive their Lordships' approbation, and having become the law of the land, would be found of great benefit to the public. The noble and learned Lord then laid upon the Table the report of the committee.