§ (The Lord Monkswell.)
§ (NO. 190.) COMMITTEE.
§ House in Committee (according to order).
307§ Clauses 1 and 2 agreed to.
§ Clause 3 (Newspaper reports of proceeding of courts exercising judicial authority privileged).
§
Amendment moved,
In page 1, line 14, after ("leged,") insert ("and if such proceedings shall last for more than one day, it shall not be lawful to publish any report until after a verdict or other conclusion of such proceedings, and any such publication or circulation may be deemed a contempt of court, punishable as such by the judge of the court whose proceedings shall have been prematurely reported").—(The Lord Denman.)
§ Amendment negatived.
§ On the Motion of Lord MONKSWELL, Amendment made, in page 1, line 15, after ("blasphemous,") insert ("or,") and leave out ("or scandalous").
§ On Question that the Clause, as amended, stand part of the Bill?
§ LORD ESHER (MASTER of the ROLLS)said, he wished their Lordships to understand exactly what they were asked to do in regard to this question of newspaper privilege? If a person cut a libel from a newspaper and sent it by a letter to a friend by way of information, that person was liable to an action and was not protected by privilege, although the newspaper from which the libel was taken would be so protected. So, if a newspaper reporter communicated his report to another person, and the latter sent it by letter to a friend, the paper publishing the report would be protected by privilege, whilst the sender by letter would not. This was a curiosity, and one would think there ought to be some explanation why a newspaper should be allowed to libel people with impunity, when the same report cut out of the newspaper might render the person so dealing with the report liable to an action.
§ LORD HERSCHELLsaid, that, in order to render such a person liable to a prosecution for libel, it would have to be proved that he was actuated by malice.
§ Clause, as amended, agreed to.
§ Clause 4 (Newspaper reports of proceedings of public meetings and of certain bodies and persons privileged).
308LORD MONKSWELLsaid, the Amendment which he now proposed to move, and several other Amendments, had been suggested by the National Association of Journalists after consultation with the Lord Chancellor.
§ Amendment moved, in page 1, line 17, after ("of a,") insert ("bonâ fide,") and leave out ("convened or").—(The Lord Monkswell.)
§ THE LORD CHANCELLOR (Lord HALSBURY)said, that he had some difficulty in understanding this clause. What was a public meeting? A meeting to which the public were invited to attend, or were admitted by ticket? A railway meeting would be to many persons one of great interest, but was it public? He did not know what a public meeting was unless it was one to which every member of the public was entitled to go. He quite saw what the object was, but he doubted whether in practice it would be so easy a matter to adjudicate upon. Having delivered his soul on the subject, he would not carry his objections to the Amendment further; but he had great doubts whether it would effect the object the noble Lord had in view.
LORD MONKSWELLobserved, that many meetings were held, admission to which was by ticket. These meetings were for all practical purposes open to the public, and it was only fair and reasonable that the proceedings should be privileged.
§ LORD HERSCHELLsaid, that a meeting of railway shareholders could not be called a public meeting, and yet it was a meeting of public interest.
§ THE PRIME MINISTER AND SECRETARY OF STATE FOR FOREIGN AFFAIRS (The Marquess of SALISBURY)said, he feared the question of restriction was difficult of definition. There might be a meeting where a person expressed himself with undue emphasis and was turned out. Immediately restriction began, and a report which up to that time was privileged became at once not privileged.
§ LORD HERSCHELLsuggested, that there ought to be no difficulty in privileging a meeting convened for a public purpose.
§ THE MARQUESS OF SALISBURYobserved, that it might be that Liberals 309 would consider a Conservative meeting of no public interest, and vice versâ.
§ Amendment agreed to.
§ Amendment moved, in page 1, line 18, after ("lawful purpose,") insert ("whether the admissions thereto be general or restricted.")—(The Lord Monkswell.)
§ LORD HERSCHELLsaid, he had great doubts as to these words. If the admission was to be restricted, how could it be called a public meeting? He thought it would be much better if the complicated phraseology of the clause were replaced by such words as "bonâ fide held for a public purpose."
§ THE EARL OF SELBORNEthought that the words "bonâ fide" would show that it was not a meeting at which only one or two persons might be present.
THE EARL OF MILLTOWNsaid, the words were a contradiction; how could the meeting be public if restricted?
§ Amendment agreed to.
§ Amendment moved, in page 1, line 18, leave out ("lawful purpose"), and, after ("or,") insert ("except where the proceedings are intended to be private").—(The Lord Monkswell.)
§ THE MARQUESS OF SALISBURYasked, in reference to the meetings of public Bodies, who was to determine whether the proceedings were intended to be private or not?
LORD MONKSWELLThe chairman or majority of the meeting. Perhaps it would be well to amend the Amendment by inserting, after "intended," "by consent or resolution of the meeting."
§ Amendment, as amended, agreed to.
§ On the Motion of Lord MONKSWELL, Amendment made, in page 2, line 7, by inserting ("or") before ("indecent,") and leaving out ("scandalous").
§ LORD MONKSWELL moved to omit all the words after the word "matter," and insert "not published in the interest of the public." He said that he had made this change on account of what had fallen on a previous occasion from the Lord Chancellor, who had considered that the words "public interest" might cause difficulty, and that an Amendment such as was now proposed should render it easier for the 310 reporters to judge what should be published.
§ Amendment moved, in page 2, line 17, to leave out all the words after ("not") to the end of the clause, and insert ("in the interest of the public.")—(The Lord Monkswell.)
§ LORD HERSCHELLsaid, that a great deal was published for the interest of the newspaper and not for the interest of the public. He did not think that they could inquire into motives.
THE EARL OF MILLTOWNasked who was to decide whether the matter was or was not in the interest of the public—the Judge or the jury?
§ LORD HALSBURYsaid, it was for the jury to decide as a question of fact.
§ Amendment agreed to.
§ On Question that the Clause, as amended, stand part of the Bill,
§ LORD HERSCHELLsuggested that that the question of privilege in connection with meetings ought to be re-considered. He had not put down an Amendment, though he intended to do so at a later stage. The question was one of considerable public importance. This clause proposed to absolutely privilege a newspaper giving a true and accurate account of what had taken place at a meeting, notwithstanding the fact that things very injurious to the character of individuals had been uttered. The person slandered would have no redress against the newspaper, even though his private character might have been most injuriously affected. Meetings would be carried on privately, the proceedings of which, nevertheless, would certainly be known and made public, and in this case he considered that the person who uttered the words should be directly responsible. There would be no injustice in saying to a man that in such circumstances he would be as responsible for his words as if he had written them, reserving, of course, all existing privileges.
§ LORD HALSBURYsaid, he must express his entire concurrence with what had fallen from the noble and learned Lord; his only sorrow was that the noble and learned Lord had not thought of it in 1881, when he was Solicitor General. At that time he had himself made the very proposal in the House of Commons, but he was overruled by the 311 noble and learned Lord at half-past 11 at night. The consequence had been that an Act of Parliament was passed which did not contain the protection which the noble and learned Lord thought necessary.
§ LORD HERSCHELLsaid, that the lateness of the hour was probably the reason. The present Bill, however, considerably enlarged the privilege introduced into the Act of 1887. When the immunity was made wider the danger was greater, and the extension of privilege made the necessity greater for protection such as he had indicated.
§ THE MARQUESS OF SALISBURYsaid, he considered that a person libelled would be placed in a very difficult position. He would have no means of proceeding against the newspaper, and he would not be able to reach the speaker, because he in all probability would not be able to obtain the evidence that he uttered the words.
§ LORD ESHERsaid, he had always thought a man ought to be answerable in every case for slander. Why should a man be relieved from penalty in a case of slander when if he wrote the same thing he would be liable?
§ LORD HERSCHELLremarked, that words spoken were frequently not as deliberate as words written. The number of actions for slander would be very much increased if such actions were allowed for every ephemeral expression. But he did think that where a man made a speech intended to go out to all the world it was of the same character as written words.
§ Clause, as amended, agreed to.
§ Clause 5 (Consolidation of actions).
§ LORD MONKSWELL moved in page 2, line 23, after "actions," to insert "so that they shall be tried together." He thought it extremely desirable that the jury should have but one action and the whole amount of damages in their view at once.
§ Amendment moved in page, line 23, after ("such actions,") insert ("so that they shall be tried together").—(The Lord Monkswell.)
§ LORD FITZGERALDsaid, he was of opinion that the clause was unworkable. The jury ought to assess the damage in each individual case.
§ LORD HERSCHELLsaid, he approved the view that the jury should assess the entire damages at once.
§ Amendment agreed to.
§
Amendment moved,
In page 2, line 23, after ("actions,") insert ("or to order the author or authors of any anonymous letter or matter, if disclosed, to be the sole defendant or defendants in any action or actions").—(The Lord Denman.)
LORD MONKSWELLsaid, he must oppose the Amendment on the ground that it was impossible to make the Judge the person to decide matters of that kind.
§ Amendment negatived.
§ Clause, as amended, agreed to.
§ Clause 6 (Power to defendant to give certain evidence in mitigation of damages) agreed to.
§ Clause 7 (On prosecution for libel, knowledge of person proceeded against to be shown.)
§ THE MARQUESS OF SALISBURYsaid, he would suggest that in the absence of the person generally responsible there should be another person who would be responsible.
LORD MONKSWELLsaid, the clause as it stood was practically a restatement of the law as enacted by Lord Campbell's Act. Still, he would be willing to insert words to meet the objection that had been taken to the clause.
§ LORD COLERIDGEsaid, it would be very inconvenient to alter the law as laid down in Lord Campbell's Act, under which two authoritative decisions had been given by the Court of Queen's Bench. If the clause did not go any further than that Act it would be a pity to disturb it.
§ LORD ESHERcontended that the clause as it stood was right; no man who was not criminally cognizant ought to be convicted of crime. There ought to be no condition whatever attached to his relief from criminal conviction.
§ LORD HALSBURYpointed out that the business of a newspaper was carried on on behalf of the proprietor and for his profit, and a primâ facie duty rested upon him to see that his neighbours were not slandered. He thought the clause must be modied in some manner, for there was nothing to show what was meant by due care. It seemed to him that the proprietor should take some 313 precaution for the protection of persons whose characters might be assailed.
§ Clause (by leave of the House) withdrawn.
§ Clause 8 (Obscene matter must not be set forth in an indictment or other judicial proceedings) agreed to.
§ LORD COLERIDGE (LORD CHIEF JUSTICE OF ENGLAND), in moving to insert the following New Clause after Clause 8:—
Section three of forty-fourth and forty-fifth Victoria, chapter sixty, is hereby repealed, and instead thereof be it enacted that no criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper or other publication, for any libel published therein without the written fiat or allowance of Her Majesty's Attorney Generals in England and Ireland respectively, or without the order of a Judge at Chambers being first had and obtained; application for such fiat, allowance, or order being made either to the Attorney General or to the Judge as aforesaid, but not to both. That such application shall be made on notice to the person accused, who shall have an opportunity of being heard against such application,said, he admitted the clause was open to the objection that it went a little beyond the scope of this Bill. The law at present was that the sanction of the Director of Public Prosecutions must be obtained before criminal proceedings could be commenced. The office of Director of Public Prosecutions was a new office which was created by general consent and from which great things were hoped for. The first person appointed to fill the office was a Queen's Counsel, but after some time he resigned and was succeeded by the Solicitor to the Treasury. Previous to the creation of this office the sanction of the Attorney General had to be obtained, and if he exercised his discretion badly he could be brought to book and his conduct inquired into in Parliament. The conditions were not quite the same in the case of the Solicitor to the Treasury. He exercised his functions not at all in the public gaze, and, with all respect to the present holder of the office, he might not be exactly the person upon whom such a responsible duty as this should devolve. He was told that the exercise of this function in the hands of the Solicitor to the Treasury had become almost a matter of course. A number of highly respectable newspaper proprietors had forwarded him a statement on the subject, in which 314 the reason given for their objection was that it had become notorious that since the passing of the Act of 1881 the fiat was granted almost indiscriminately. It was found that the Public Prosecutor issued his fiat without due inquiries, and almost as a matter of course. A case had recently come before him which was an instance of this. A newspaper had published a paragraph of some half-dozen lines in which it was said that a well-known jockey had "pulled" a horse. For this—which was no doubt libellous, but purely an imputation on private character couched in words not such as to excite to a breach of the peace—the Public Prosecutor granted his fiat and the matter was turned into a criminal proceeding, subjecting the proprietor to imprisonment. The practice of turning these libels on private individuals into criminal proceedings was one opposed to principles laid down by the greatest Judges, who had pointed out that, though a libel calculated to excite to a breach of the peace was a proper matter for criminal proceedings, yet that with cases of ordinary libels on private character the public had nothing to do, and the individual ought to be left to his civil remedy. This important power of turning a civil wrong into a crime ought to be exercised by some person responsible to the public, and he therefore proposed that it should be vested in the Attorney General or a Judge at Chambers.
§
Amendment moved, after Clause 8, insert as a New Clause—
Section three of forty-fourth and forty-fifth Victoria, chapter sixty, is hereby repealed, and instead thereof be it enacted that no criminal prosecution shall be commenced against any proprietor, publisher, editor, or any person responsible for the publication of a newspaper or other publication, for any libel published therein without the written fiat or allowance of Her Majesty's Attorney Generals in England and Ireland respectively, or without the order of a Judge at Chambers being first had and obtained; application for such fiat, allowance, or order being made either to the Attorney General or to the Judge as aforesaid, but not to both.
That such application shall be made on notice to the person accused, who shall have an opportunity of being heard against such application."—(The Lord Coleridge.)
§ LORD HALSBURYsaid, that the Act of 1881, as originally drafted, conferred this power of granting a fiat in eases of prosecutions for libel against newspapers upon the Attorney General; but for some reason which he regretted 315 the Bill was altered and the power was placed in the hands of the Public Prosecutor. He agreed with the noble and learned Lord that this practice would best be discharged by the Attorney General, and so far he agreed with the new clause proposed by the noble and learned Lord. But that clause also proposed that the fiat of the Attorney General should be necessary before a criminal prosecution was commenced against the person responsible for the publication of a newspaper or "other publication." He could not agree to deprive private individuals of their right to take criminal proceedings for libel against other private individuals. This protection was, by the Act of 1881, only intended to apply to newspapers in the performance of what might be regarded as a public duty. That protection he could not agreed to extend. As to the other alterations which the clause would make they would be of a most mischievous charater.
§ THE EARL OF SELBORNEsaid, that the only ground on which a private person ought to be allowed in cases of libel to take criminal proceedings was that some public interest was involved. Certainly no private person, to whom a civil remedy was open, should be the judge in his own case of the propriety of preferring an indictment, and that he understood to be the principle of the Amendment.
§ LORD HERSCHELLsaid, he was inclined to agree with the view of the Lord Chancellor in regard to this matter. He did not regard it as important whether the clause was carried in its present form or not; but he could not agree that a libel against a man's character ought to be regarded as a mere private wrong. A man's character was at least as valuable to him as his money, and the civil remedy when it was attacked was often worse than worthless. The libeller might be hopelessly impecunious, and the injured man would by civil action only burden himself with costs. Then there were cases in which scandal was profitable, and the offenders readily found the money and repeated the offence. He could give many examples in which an indictment was the only efficient remedy open to the injured man.
§ LORD COLERIDGEsaid, he was willing to modify his clause so as to 316 limit its application to libels published in newspapers.
§ Amendment made, after ("newspaper") by leaving out the words ("or other publication").
§ Clause, as amended, agreed to, and added to the Bill.
§ Clause 9 (Person proceeded against criminally, and the husband or wife of such person competent witness).
§ Amendment moved to omit Clause 9.—(The Lord Denman.)
§ Amendment negatived.
§ House resumed: Bill to be printed as amended; and House to be again in Committee on Thursday next. (No. 231.)
§ House adjourned at a quarter past Six o'clock, to Thursday next, a quarter past Ten o'clock.