§ Order of the Day for the Second Reading read.
My Lords, in asking your Lordships to give a Second Reading to this Bill this afternoon I think I should begin by saying that I have made myself responsible for it at the request of the Incorporated Society of Authors, Playwrights and Composers, on the committee of management of which society I have the honour to be. I think it is generally recognised that this society is the responsible body for looking after the best interests of authors and members of the literary profession as a whole. This Bill can be described as entirely non-Party and I hope that in its main principles at any rate it may be considered also as free from serious controversy. The Society of Authors has had it under consideration for a large number of years and it is the result of a good deal of practical experience.
I ought to say at once that there is no desire on the part of any author to protect another author unduly at the expense of any private person. We know that some people write at times, with knowledge, of some personal enemy and that they put in prejudice and malice or, alternatively, use facts with great carelessness. It is not desired that any one who writes a work of fiction with any of those things in mind should be free from the normal procedure of the law as it stands at present. The Bill is designed merely to protect the author who, without the slightest intention whatever and after having taken all reasonable precautions, uses the name of some living person in a work of fiction. I am assured by those who have studied the law of libel as part of their profession that there are extremely few genuine grievances arising from the use of the names of real people. In fact, in the years which have 304 clapsed since the test case of Jones v. Hulton, in only one case has the plaintiff succeeded in establishing that there was reasonable ground for supposing that he was, in fact, the person to whom allusion was made.
The point of view of the author is that there are constant vexatious complaints and charges, and it is to remedy these rather than to deal with serious and real injury that the Bill is designed. I may point out that any writer of fiction, whether serious or light, is by virtue of his calling peculiarly liable to have frivolous or blackmailing claims and charges made against him. It is impossible to conceive the writing of a work of fiction without the mention of anybody's name. If we had all our characters in books labelled Mr. A. or Miss B. I think fiction would not occupy that honourable place in the list of books that it does at present. I was interested to observe that in the eighteenth century there was one celebrated instance at any rate of the respect paid to members of your Lordships' House. In one of the best known of Richard-son's works, while he has no hesitation whatever in ascribing definite names to his heroes or villians, where he has occasion to mention a member of your Lordships' House he refers to him only by his initials. The eighteenth century is passed and now, if there were necessity to refer to a member of your Lordships' House, I think it would be necessary to give a name. There, of course, with the limited field of names, it is possible to avoid any reference to any living member of your Lordships' House.
Those who have not studied this question with any detail say it would not be difficult to avoid the choice of the name of a living person, and ask: Why not he on the safe side and choose some quite impossible name? Experience has shown that there is no such thing in real life as a completely impossible name. It was at one time thought, as no doubt many of your Lordships are aware, that Charles Dickens invented the names of his characters. We now know that he, like many other authors, took note as he went along in his life of various names that struck his fancy and made a record of them for use on subsequent occasions. This morning I turned up the London 305 Telephone Directory and had no difficulty whatever in finding the name of Snodgrass and the name of Winkle, and it would have been open some years ago to any gentlemen of those names to have issued a claim against Mr. Dickens for having held them up to ridicule. The immortal name of Pickwick is not in the Telephone Directory, but we know there are people with such a name walking about the streets of England.
I will give a definite and quite recent example. Not many weeks ago a publisher issued in the ordinary course of his business a preliminary announcement of a novel that he intended to publish, in these words:—A middle-aged man and woman have done well in the world together, hut chiefly through the woman's power and charm. Circumstances then bring the man, Firmin Bradbeer, back to the surroundings in which he passed his childhood. Here he reveals what has always lain dormant in him before the eyes of his wife.It is perhaps difficult for a layman to see in what respect such a paragraph as that could be held in any way to be libellous. I can hardly believe that to state a person is middle-aged to-day should be so adjudged, or even that one owed one's success, or even thought one owed one's success in life, to one's wife's power and charm. But the point to which I wish to direct your Lordships' attention is that though here the author has chosen a very singular surname and a Christian name which, so far as I know, is unique, nevertheless that author has not been safe, because there has appeared a person who says that that is, in fact, his name, both his Christian and his surname, and that therefore this paragraph refers to him. He claimed damages from the author and would not even be content, though the book has not yet been published, with an apology or an alteration of the name. I shall have occasion in another moment to refer to that case again.
Such are the difficulties, however, in front of any author who chooses what he imagines to be a very impossible name. There is almost certain to be somebody throughout the length and breadth of the land who possesses that name and the more rare it is the greater reason has that particular person for saying: Obviously you meant it for me. So much is this so that it is the practice of one 306 very well-known author always to use perfectly ordinary names, on the principle, of course, that there is safety in numbers. To quote again from an ancient instance, there is no doubt that Fielding would have been quite safe from any Tom Jones by the number of Tom Joneses there are in this country. But your Lordships can readily appreciate what a limitation that places upon the art of fiction. It is extremely difficult to imagine the scion of an ancient house, who for some purpose it may be necessary to put into one's novel, called by some perfectly obvious and ordinary name; and even if the novelist, rather than run the risk of choosing a very uncommon name, always chooses extremely ordinary names, he is still by no means safe from having a vexatious charge brought against him.
There is a well-known novelist living to-day, who wrote a book in which he has chosen for Ids plot the somewhat amorous adventures of his hero. He chose a perfectly ordinary name. I again had recourse to the London Telephone Directory this morning, and I found in that, which, after all, is a fairly limited field, that there were no fewer than 99 persons bearing the same name. Therefore we must imagine that there must be many hundreds in England and, as it was a common Scottish name, many thousands in Scotland who had that name. The hook became quite well-known, and after a time some gentleman who had the surname that had been used by this author found himself the subject of lighthearted chaff on the part. of his friends, who purported, for the purpose of badinage, to assume that he was the gentleman referred to. After some Considerable time, this gentleman thought that this was a chance out of which some material advantage might be derived. He thereupon wrote to the author and said he claimed damages for libel. The author was not only well known but he was also fairly well-to-do, and he was possessed of a temperament that did not suffer fools gladly; so he determined to fight the case and did so. He proved that at the time the book was published the man who was claiming damages from him was exactly two years old, so that, in the opinion of any reasonable man, it could not have been held to apply to him. The case was accordingly dismissed, but the author was not only put to a great 307 deal of time and trouble, but also was very substantially out of pocket as the cost of his successful defence.
Passing away from the subject of names, supposing an author attempts to give verisimilitude to his work by describing a particular part of the country; even there he is in great danger of having a vexatious action brought against him. Supposing an author, without mentioning any name, were to say that not ten miles from a cathedral city in the North of England there dwelt a choleric captain with a bulbous nose and unpleasant habits: it is by no means certain that somebody would not write to him and say: "I live not ten miles from York, which is a cathedral city in the North of England, my nose is unfortunately bulbous, some people think that my habits are unpleasant, and undoubtedly my temper is choleric. Besides that, I have been a captain in the Army. Therefore, this must refer to me." That is an imaginative case, but it is not very far removed from what is actually happening.
A well-known authoress last year published a book in which she mentioned by name a certain seaside resort. In the course of her work, she quite incidentally referred, without mentioning any name, to the drunken fisherman of that resort. I should be far from saying that fishermen are any more or any less drunken than any other profession, but I think we might, say that in most seaside resorts where there are fishermen there will be at least one who has been at some time or other the worse for liquor. In this particular resort there was a fisherman who hastened to clap the appellation upon himself and said: "I am the drunken fisherman to whom you allude." The authoress found herself with a claim for damages. She went to her solicitors who said: "You can fight it if you like, but it will cost you time and money and you had much better settle it for a small sum."
She was in communication with the fisherman and about to settle it when a firm of solicitors in quite another part of the country learned of what was going on and got into touch with the fisherman. They said: "No, your reputation is worth a great deal more than you are expecting to extract from this authoress." And eventually the authoress had to pay, 308 or did pay, a good deal more than the fisherman at first was prepared to accept. Yet it is not pretended for a moment that this case, if it had been fought in the Courts, could have been supported by any material evidence of damage, or that there was any allusion to this particular man. I am informed that as the result of long experience it is found almost invariably much the cheapest and easiest to pay a sum to settle a claim made in this way.
The Bill which I have the honour to ask your Lordships to consider favourably this afternoon is really confined to two points. In the first place it attempts to meet these constant cases of frivolous charges, really cases of literary blackmail against the poor author, and in the second place it deals with the fact that the author's status in the matter is very frequently entirely ignored. In the case to which I have already referred, where there was a preliminary announcement by the publisher, the claim was in the first place made against the publisher, who is no more interested in the work of one author than in the work of all the other authors for whom he acts as publisher. He, without reference to the author, settled the claim for a small sum and then debited the author with the amount. There is no procedure, so I am told, by which the author is bound to be made a party to defend his work, and there are cases where the long and laborious work of a man is put on one side and the issue suppressed by the publisher, because he would rather settle it without trouble and without any reference to the author at all.
There are only four material clauses in this Bill. The first clause provides that proof of some intention, some knowledge by the author of the person who is supposed to be damaged, must be given or else that the defendant should satisfy the Judge that he has taken all reasonable precautions and has not been guilty of negligence. The second clause provides that the author should be able, if he can satisfy the Judge, to obtain an order dismissing the action as a frivolous one. These two clauses should be read in conjunction with Clause 3, by which a Judge has power to make an order by which the defendant, the author, can be called upon either to apologise or to alter the 309 names of his characters, "or otherwise as may in all the circumstances of the case seem just." That is giving a wide discretion to the Judge to deal with the matter in a way he thinks most fair, and it is hardly possible to see how much wider words can be used. That, I submit, is a safeguard to any person who really has any legitimate grievance. The fourth clause provides that the author should be made the defendant as well as the publisher, or even without the publisher, so that he may, if his work is called in question, be able to defend it. That is the Bill.
I have only to add that it has been before the Council of the Publishers' Association and has met with their warm approval. The Bill is not produced hastily by a pure layman, but has been considered by those who have great practical experience in this matter. I notice that the noble and learned Lord opposite, Lord Darling, has placed a Motion on the Order Paper providing that if the Bill is read a second time it should be referred to a Select Committee. If the noble and learned Lord deems that to be necessary or advisable I am far from wishing to oppose it. There may well be legal matters dealing with the law of libel and other technicalities which have not been fully appreciated by myself, and if that is so and the noble and learned Lord moves his Motion, I shall not oppose it. I hope, however, that your Lordships will see fit to give the Bill a Second Reading. The profession of a novelist is not one which in most cases is richly rewarded and it has its exacting side. Under the aspect I have delineated this afternoon it also has its grave dangers, and there must be few people who have not had many hours of encouragement, solace and amusement from reading the work of authors. I hope their interests may receive favourable consideration from your Lordships. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Gorell.)
§ LORD BUCKMASTER
My Lords, there are two things which this House will, I think, be especially anxious to protect. One is the right of an author to use untrammelled his imaginative powers for the purpose of the recreation and amusement of his readers, and the 310 second, of equal consequence, to safeguard all people from unlawful and libellous attacks. It seems to me that to-day beyond all other times a man's character is of the highest possible value and nothing ought to be done to take away any right he possesses to protect its security. Again, there is another thing which is hateful to every form of society, and that is your needy and speculative litigant, the person who assumes that he has received an injury when, in fact, he is not injured at all, and goes before the Court in the hope that he may be able from a sympathetic jury to extract damages for a wrong that he has never suffered.
I rather gather from the noble Lord that this Bill is designed to meet that particular class of attack, and if it were so it would certainly have nothing but commendation and approval from myself. But on reading the Bill I find it rather difficult to see 'Inv it will secure that end at all, except, possibly, by the second clause. I read the first clause with some anxiety and I am not sure that it advances the present law at all. It provides that no action for libel shall be maintainable UT less it is proved that the defendant intended to publish "such defamatory matter of and concerning the plaintiff." I speak as one who is always ready to be corrected in these matters, but I thought that the gist of every libel action was that the words were spoken "of and concerning the plaintiff" and that, unless you can establish that fact, the whole of your action falls to the ground. Therefore it seems to me that this first clause does not carry the existing law one single step further than it reaches at the present moment.
Further, the provision may be limited unfavourably against the author, and for this reason. Your Lordships will see that this clause refers only in the first place to "a literary or dramatic work." What is a literary work? This may be extremely difficult to define, for people's notions of literature vary considerably and I am bound to say that a great deal of the material that is published between covers in the form of a book does not appear to me to have any literary quality at all. But still, assuming that you have got over that difficulty and that you have established that anything that is written becomes literature—I sincerely hope that nothing so ridiculous 311 will ever be established—the next thing that you come to is that it must be a work "which purports to be a work of fiction." But some of the finest flights of imagination have been soared upon the assumption that they were dealing with reality and not with fiction. A great many of Scott's novels were written as definite records of events and do not purport to be fiction at all. That they are fiction is undoubtedly true, but, on the face of the hooks, they do not purport to be fiction.
Again, if your Lordships have ever read, as many of you surely must, those most delightful tales that were published about India, beginning with "A Digit of the Moon" and going through a long series, you will remember that they were all published under the most cleverly assumed disguise as nothing but a translation of existing documents. In fact, they were a work of the purest and most delightful imagination that in recent times it has been my pleasure to read, hut, none the less, they never purported to be fiction at all. Consequently it appears to me, in the first place, that the first clause as it stands adds nothing whatever to the protection which the author does and most certainly ought to enjoy; and, next, that a man has only got to declare that his book is a statement of fact and not a work of fiction and he can pursue his malignant purpose of caricaturing his friends to the utmost extent of his desire.
The next provision is one with which I am not so much prepared to quarrel, for the reason that I am afraid that I am a little irregular in my notions about legal proceedings. I have often thought that it would be a most admirable thing if, in every litigation, it were possible at the earliest stage to put a test either of the plaintiff's case or of the defendant's case, and to see whether there was, in fact, anything to be tried. There is no greater scandal than the scandal which involves people in prolonged and heavy losses at the instance of perfectly worthless and impecunious persons, and I should be very glad indeed to assist the noble Lord in devising some scheme applicable not merely to authors—because, great as their claims are upon us, we, too, are human beings and are entitled to the same protection as they are—but generally, and I should be very glad if the Lord Chancellor could see his way to help us in that 312 respect. The second clause, then, as I say, is one which, in my opinion, ought to be read generally and not with special application to a limited class.
Finally, we come to a clause which, I am bound to say, causes me some surprise. If you are going to proceed, either civilly or criminally, in regard to any matter against the person who has published it, the proceedings are to be postponed until you have takenall reasonable steps to notify the author that such proceedings are pending.After all, the essence of every libel is o always publication. That, unless my legal training has been forgotten, is the essential fact of libel, and it is the person who publishes the libel who is really responsible. A man may have written a letter and not published it at all. However, when you have the publisher you have to hang up the whole of your proceedings, either civil or criminal, until you have notified the author.
§ LORD BUCKMASTER
I think the Bill says:Where any criminal or summary proceedings are taken…but it may refer only to criminal proceedings, which makes it all the more ridiculous. Let us assume that an obscene work has been published. There will probably be present to your Lordships' minds one of the last occasions on which an important work was prosecuted on the ground of its obscenity. I refer to Zola's "La Terre". Vizitelly, the publisher, was prosecuted for it and convicted.
§ LORD BUCKMASTER
That makes the conviction the more remarkable. It has always struck me that it was, in fact, a remarkable conviction, but, none the less, this man was, according to the law of this country, found guilty of having published an obscene work. It is enough for us, who are prepared to accept the guidance and judgment of the Court, to say that we must take it as the law that the publication of that work was an obscene thing and, being an obscene thing, it must surely be stopped. I want to know, 313 therefore, what would have been "reasonable efforts" to notify M. Zola, who was then living in retirement in France, that proceedings were being taken against Mr. Vizitelly over here and that we were postponing the whole of these proceedings until that was done. When you have notified him and received due information—which, I should imagine, through the dissemination of that class of matter through the daily Press, who are not as a rule very anxious to obscure such an incident, would not, have taken very long—what then? He is then to have a "reasonable opportunity of appearing."
Supposing he says that he wants to appear, is he to be made a co-defendant? Arc proceedings to be taken against him? The Bill does not say that at all. All that the Bill says is that nothing shall be done to—make any order prejudicial to the work or the author unless after hearing the author and any evidence that may be adduced by him the court or the judge is satisfied that the matter complained of is in fact blasphemous, seditious or obscene.I suppose it is prejudicial to an author to send him to gaol, but I wonder whether this is meant. If rot, it seems to me that all that this clause does is most needlessly to embarrass and paralyse the arm of the criminal law, and I see no reason whatever why that should be done.
Accordingly, so far as this Bill is concerned, it appears to me that, as it stands, the first clause is unnecessary. If it is not, I shall be glad indeed to help the noble Lord to achieve what he desires. It seems further that the second clause should be made of general application. And it seems that the fourth clause is a change in our criminal procedure which I think most people who are familiar with the administration of the law would highly resent.
§ LORD DARLING had given Notice, in the event of the Bill being read 2a, to move, That it be referred to a Select Committee. The noble and learned Lord said: My Lords, when I put down the Motion which stands in my name I did not in the least mean to imply that I recommended the Bill for a Second Reading, but I knew that the noble Lord opposite. was moving the Second Beading of the Bill not altogether on his own 314 account and there were many people who wanted some such provisions accorded them as are contained in the first clause. It was because of that, more than anything else, that I did not put down a simple Motion for the rejection of the, Bill.
§ I can hardly agree with the noble and learned Lord, lord Buckmaster, when he says that he cannot see that the first clause alters the law as it stands. I think what my noble friend Lord Gorell has in his mind in drawing that first clause is this. There was a case, Jones v Holton, which was tried about sixteen years ago. It was tried by Mr. Justice Channell. A verdict was given for the plaintiff for some£1,700 against a newspaper. It was taken to the Court of Appeal and the Court of Appeal upheld the verdict. The case was brought to your Lordships' House, where the Court of Appeal judgment was affirmed, but a dissentient judgment was delivered by Lord Moulton. If your Lordships will read it you will find it was a most forcible judgment. It is, not a judgment which can be altogether neglected. It gave. very powerful reasons for coming to a conclusion opposite to that to which Lord Loreburn, Lord Gorell and Lord Atkinson came. I am not sure whether or not there was another noble Lord sitting. They particularly relied upon the judgment of Lord Justice Farwell.
The point of it is this. A writer professed to describe the races at Dieppe. He gave a florid description of racing in France, and of the kind of people who attend there, and he put in a number of others in order to show that there was a Mr. Artemus Jones, who at Putney was a churchwarden and who at Dieppe was attending the races with a lady of doubtful virtue. There is a Mr. Artemus Jones, and he brought an action against the paper. The defendants said: "We do not mean this for the Mr. Artemus Jones who brings the action. The facts were these. We wanted to write an amusing article, and so put in the story about the churchwarden. There was not a real churchwarden; it was not right that he lived at Putney; we thought first of all of Artemus as an amusing name, and then of Artemus Ward, but as there was a person named Artemus Ward we changed it to Jones, so that it could not apply to anybody." Therefore the
defence was that the article did not apply to the plaintiff—that the author did not write it and the paper did not publish it as concerning the plaintiff. Mr. Justice Channell said this:
If the jury think that the writing referred only to a fictitious person the jury should find for the defendants, but if they think it would be understood by reasonable persons who knew the plaintiff to refer to him, then they should find for the plaintiff. It is immaterial whether the writing did in fact refer to the plaintiff or not.
That was the law as laid down by Mr. Justice Channell, and as declared by the Court of Appeal and by the majority of this House, and it is because of that—I think Lord Buckmaster has rather misunderstood my noble friend who introduced the Bill—that this first clause is drawn.
§ I do not know whether it does it altogether, but I am sure that it is meant to alter the law as declared in this House, and to make it what Lord Moulton declared it to be, and that is that not only should the words appear to reasonable people to apply to the plaintiff, but they must be proved to have been written by the author, or published by the publisher, with the intention that they should apply to him. It may be that the words of the clause do not do what Lord Gorell desires, because you could read the clause as Lord Buckmaster reads it, so that it does not alter the law in regard to "defamatory matter of and concerning I the plaintiff." I think, however, that Lord Buckmaster has overlooked this, that the clause contains the words "intended to publish or published negligently." That is introducing something new. The plaintiff, if this were made the law, would have to prove—I think that is what Lord Gorell means—either that the author or publisher intended the libel to apply to the particular person who brings the action, or, if he could not prove that, would he bound then to prove that it was published so negligently and recklessly that the person who published it must be held liable, just as any person who commits any other wrong recklessly is made to pay for it. I think, therefore, that this first section does raise a question which it is desired, and I think reasonably, by many people, should be raised and settled once and-for all, seeing that there is that very strong dissentient judgment of Lord Moulton's in the case of Jones v. Hulton before this House.316
§ With regard to the rest of the Bill I really cannot see that there is anything to be said for it. Clause 2 would have a preliminary investigation. Now I entirely differ from Lord Buckmaster with regard to that. Will your Lordships read Clause 2 and see what it does? Lord Buckmaster would apply it not only to libel but to every cause of action that can come before the Court. At present a man issues his writ and takes the ordinary steps, and the matter is tried before a Judge or Judge and jury. My noble friend would have it that before the case shall be tried, and even before the defendant has put in his defence, the defendant may apply to the Court to dismiss the action on the ground that there is no reasonable probability of the plaintiff being able at the trial to prove the defendant's intention or negligence. This inquiry is to be held before the Judge alone, and is to be decided by that unfortunate official simply upon affidavit.
§ Anybody with skill in drawing affidavits could draw an affidavit which, if one could believe all that was in it, ought to satisfy anybody that there was not the slightest probability of the plaintiff being able at the trial to prove his case. If I were trying the matter there is one thing that I should ask him, and that is this: "You tell me it is not probable that the plaintiff can prove his plea. Will you tell me who is the leading counsel to appear for him?" Because I know some counsel who could prove it, and I know others who certainly could not. All this is to be explained in the affidavit. How would counsel be able on affidavit to show whether there is a reasonable probability 7 Lord Buckmaster would apply this to all sorts of cases. I am afraid that he has not seen the cases of a rather disreputable character that I was so long acquainted with. How is anybody to investigate the ordinary cases of a taxi-cab running into a carriage or an omnibus, or over a person, sober or drunk, upon an affidavit, and to say whether the defendant should be allowed to put in a defence, or whether he should not?
The next clause is Clause 3, which is a most extraordinary proposal. It states:—
Where a defendant in any action for libel relies upon the provisions of Sections one or two of this Act, the court or the judge may, as a condition of giving judgment or making any order in the defend-
ant's favour, put the defendant upon such terms as to the publication of an explanation or apology or the altering of the names of characters in the work or otherwise as may in all the circumstances of the case seem just.
That assumes that the trial has been finished, that the jury have found for the defendant, but that the Judge thinks that still there should be soma alteration made in the book.
§ Both the noble Lords who have spoken have mentioned Charles Dickens. The noble Lord opposite said there never was such a person as Pickwick. Oh, yes, there was. Charles Dickens took the name of Pickwick from the name upon the coach that ran from Bath through Chippenham. Any one who has ever been out with the Beaufort Hounds and seen the inn called the "Crosskeys Pickwick" will know exactly how the name was given to the little infant Pickwick who became the proprietor of that line of coaches. What would the Judge have to do? He might say: "Well, this is rather hard upon the real Pickwick. I will settle upon another name." What name could he settle on? How long would it take him to find a name which would be acceptable to everybody? He might give his own name—I do not suppose anybody could find fault with that—but short of that I do not see what he could do.
§ Take another case. It is very well known that the Judge in the ease of Bardell and Pickwick, Mr. Justice Stare Leigh, wits a Judge upon the Bench at that time. There was only a slight alteration of the name, which I will not mention, as there are still members of the family. Mr. Justice Stareleigh was a caricature of a Judge then living, and, as a. Judge, I should not like to have it said of me, as was said of Mr. Justice Stareleigh: "At this point the learned Judge wrote something in his book with a pen with no ink in it "This is the kind of thing we have to deal with. We may assume that the defendant had got a verdict. Then the Judge has to say, according to Clause 3: "Well, now, this is really a very offensive imputation on my brother Stareleigh, that he takes his notes with a pen without any ink in it, and I must put in some other name." It would be very tempting to put in the name of somebody who lately reversed him. I will not assume that he would 318 do that, but it would throw upon him the difficulty of deciding what name he is to substitute for that of Mr. Justice Stareleigh.
§ There is an even stronger case. There is a case of the Lord Chancellor who had as a friend, according to Dickens, a Mr. Pell, a most disreputable attorney who practised in the Bankruptcy Court, and Mr. Pell told a story of how the Lord Chancellor used such language as I do not think any Lord Chancellor ever did use, in order to convey his high opinion of Mr. Poll's talents in getting anybody through the Bankruptcy Court. I have ascertained that when Dickens published this about the Lord Chancellor Lord Cottenham occupied the Woolsack. Suppose an action had been brought and the Judge said: "I have said what yon must do about Mr. Justice Stareleigh, and now here is the case of the Lord Chancellor. I cannot allow you to defame the Lord Chancellor. I must deal with the circumstances as may appear just. You must not put. in the Lord Chancellor. "The man would say: "Whom may I mention" Suppose the Judge said: "Of course, it must be a Judge, there is no point in it otherwise; supposing we take the Master of the Rolls." I cannot: really support this part of the Bill, if anybody should challenge the Second Beading; I do not think this Bill ought to be read a second time.
§ As to the next proposal I really should not have thought anything so revolutionary could have been proposed in your Lordships' House. This applies to criminal procedure, and what is provided is that where somebody has been prosecuted and put into the dock because there are criminal proceedings against him in respect of blasphemous, seditious or obscene matter, then, if that person is a publisher, the author is to be allowed to say: "All these proceedings must be hung up until I also am allowed to appear." I cannot make out what he is. He appears to be sort of amicus curiæ as far as I can see. He steps into the dock, he has not been proceeded against, there is no charge against him, and he has to have a reasonable opportunity of appearing and contending that the matter complained of is not blasphemous, sedition's or obscene. So far as I can see, if he fails, and if it is proved that it is blasphemous and obscene, 319 he cannot be sentenced, but the other man can whom, it may be, he has come to assist. I cannot imagine anything which would make criminal proceedings more. absolutely impossible than such a provision as that.
But then, the clause goes on:—
If in any such criminal or summary proceedings the author appears either as defendant or pursuant to such notification as aforesaid he shall be heard in defence of his work and may adduce evidence in support of such defence, and the court or the judge shall not convict any defendant or make any order prejudicial to the work or the author unless after hearing the author and any evidence which may Le adduced by him the court or the judge is satisfied that the matter complained of is in fact blasphemous, seditious or obscene.
That seems to come this, that if a person is indicted for obscene matter there steps into the dock beside him the person who has written it, who cannot be convicted, but who has a right to appear, and if the jury convict the publisher, why, then the Judge is not to pass sentence unless he is satisfied that the libel is blasphemous or obscene.
§ This question of whether Judges or juries should have the chief jurisdiction in matters of libel was settled over a hundred years ago. It was long the practice for the Judge to decide whether a thing was a libel or not, and, of course, if it was not a libel, the man could not be convicted. That was taken out of the hands of the Judges and left to the jury with a kind of direction which the Judges at present know how to give. But if this Bill were passed in anything like the state in which it stands, as far as I can see it would revolutionise all practice of trial by jury in libel cases, it would lead to such confusion as the law has never known. Therefore, although I think it might be well to have a discussion as to whether the ease of Jones v. Hulton should really remain the law of the land or whether it should not, I do not think anything at all should be decided until the matter has been considered by a Select Committee who can hear witnesses and discover what it is that various parties desire to do. Be that as it may, I should not be at all surprised if your Lordships decided not to give this Bill a Second Reading.
§ LORD SUMNER
My Lords, may I draw your attention to the practical 320 consequences of Clause 4 of this Bill? It applies to all criminal proceedings for any alleged blasphemous, seditious or obscene matter contained in any literary, dramatic or artiste work which has been published or performed under its author's name. The terms of the clause are so wide that it would be very difficult indeed to exclude the greater part of the publications issued from the Press. It applies to every proceeding taken to bring a work of that kind to justice, and applies to every author, wherever he lives and whoever he may be, who may have published such matter. It makes it obligatory that all further proceedings in the case shall be stayed until the prosecution has taken all reasonable steps to notify the author that such proceedings are pending and to give him a reasonable opportunity of appearing at the hearing and contending that what he has written is not blasphemous, seditious or obscene.
A small experience of a case like this occurs to me. I once tried a man for publishing an obscene libel. I cannot say that it was not literary; it might easily have been literary. The man defended himself and did so in the half-crazy fashion that authors of that kind of stuff are prone to adopt by reading the whole thing and dilating upon it, and repeating it and citing the usual quotations from "The Decameron" and all the other things which these people always try to bring out. After about an hour and a-half of this the jury said to me: "My Lord, are we obliged to listen to this stuff?" Anti I replied: "I am afraid you are bound to hear him out. He is on his trial and is defending himself and we must hear what he has to say."
Supposing that scene were repeated under Clause 4 of this Bill. The publisher could not be on his trial at all until the author of the stuff the proud parent of it, was notified and was given this opportunity. The Judge would be obliged to say to the jury, the author reading his book and defending it in the usual way: "I do not want to hear this, you do not want to hear this and the prisoner at the Bar does not want to hear this. He wants to plead 'Guilty'; he understands what it means. But I am not allowed to take his plea Guilty' because there is to be no judgment until the author has had this 321 opportunity." When the author has enjoyed himself to the full, when he has clone all the possible mischief he can to the public by declaiming his work in Court and endeavouring to justify it, the inevitable result will occur which should have happened at the beginning—namely, that the publisher will plead "Guilty," take his sentence and be removed. Then the author can leave the Court with all the pride of authorship about him. If anybody else republishes his work he would be entitled to the same opportunity over again, or if, having left the Court for a sufficient length of time, the police arrested him and charged him with the authorship, he could go over the whole thing again. That is the extra publication of filth which would be given by this endeavour to protect authors, of which an author who has sailed as close as he can to the line, or rather over it, would gladly wail himself.
This applies also to seditious matter, and I should like to consider how it could be worked out by any party, who desire to obtain the utmost publicity for seditious works. Your Lordships will see that it could, and would, be done in this way. As soon as you endeavoured to suppress a work by prosecuting the person who was publishing or selling it, the author would be entitled to come and make speeches and call all his comrades to give evidence about it, and say that they did not think it seditious and so on, and to repeat that, as long as you ventured to take proceedings at all. It appears to me that the clause, though not entirely beyond any conception of those who drafted it, has the effect of making all these prosecutions, which are always repulsive and sometimes worse, as prolonged, as notorious and as offensive as they can possibly be. That, of course, is not an integral part of the whole Bill and it could be cut out.
My noble and learned friend has not, T. think, quite hit upon the point of Clause 1. He suggests that it might be worth while to have a talk, by which I suppose he means a Committee, about the effect of Jones v. Hulton. If this was a. Bill merely to reverse a decision of your Lordships' House I should say that we are accustomed to it and we do not complain. But if the precedent was followed to any extent, your Lordships would be 322 snowed under with Bills to reverse our judgments, because it is rarely that we are all agreed and when we are agreed upon one conclusion it is frequently on different grounds.
But the real point of this Bill is to create a special privileged class, neither numerous nor meritorious nor unable to protect themselves. At present Jones v. Hulton applies as good law fur everybody. Under this Bill Jones v. Hulton will continue to apply to every literary or dramatic work not purporting to be a work of fiction. It would apply to history, which very often is a work of fiction without purporting to be such. It would apply to personal memoirs, in which the names of all the statesmen one has ever met at dinner are introduced, and in which anecdotes of their University career and so forth are carefully recorded. It would refer to dramatic works most of which, I take it, purport to be works of fiction, though there may be exceptions like the play of "Henry VIII" or "Mary Queen of Scots, "including Knox and Darnley, and so forth.
Plays mostly would come within this category and the authors of these works would be in a class by themselves, entitled to say: "Jones v. Hulton does not apply to us. If we name you by the name you bear, or if we describe you in such, a way that you are quite easily recognised by your appearance, or description or politics, or whatever it may be, we cannot be sued for it unless the plaintiff, in addition to proving that the words are understood to refer to him, that his character has been damaged and that it is very annoying, goes on to prove that the defendant either published intentionally or negligently." I do not understand how the victim of a casual passage incorporated in a book or a casual passage in a story could ever be expected to say one way or the other that the defendant intended to publish it about him. He published the book. He wrote it with his pen or typed it on his typewriter. He corrected the proofs. He sent it to the publisher and when it was published appears to have sent round copies to his friends. If that does not show the intention of publication, what does? I suppose this means that the plaintiff should not be able to get to the jury and complete his case unless he could show that the defendant had some personal 323 malice against himself, a humble person of whom the author had never heard or about whom the author did not care twopence.
In the same way, "published negligently"—what does that mean? It means, I suppose, that he did not take sufficient pains to ascertain, when he described someone who held a particular office, and on a particular occasion got into a ludicrous situation in public, that the story was true, or that at any rate there was nobody else on whom that story could be fastened. How is any plaintiff to prove that? I venture to say that the object of this clause is to discriminate between class and class. The law at present is the same for everybody who is libelled. If something defamatory has been said of and concerning him much depends upon people identifying him with the passage published. Whatever the defendant is, whether he has published one kind of work or another, whether it is a newspaper, or a novel, or a serious work, or a sermon, or what not, the law is the same, and the injured person, about whom I fancy the Society of Authors does not feel very much concern, has his chance of getting redress.
I dare say there are cases of blackmail. There may be cases of blackmail in every kind of action. If the noble Lord could devote himself to devising any practical way by which blackmailing and speculative actions could be prevented he would be a great benefactor of the country, but no one has yet found out any better way than the present, which is to take the man into Court, let him go into the witness box, and see what sort of a case he can make, and ask the jury what they think about it. If they give a farthing damages he at any rate does not get any costs. If they find for the defendant, the plaintiff has to pay the costs. If he has no money you can have the satisfaction of making him a bankrupt, and then, if he incurs a debt of more than£20 without mentioning that he is a bankrupt, which of course he never does, he is liable to be sent to prison. So, with a little pertinacity, you get your own back in time. I do not think that it is at all worth while, for the sake of discussing whether Lord Justice Moulton's judgment was right or wrong, to pass the Second Beading of this Bill, and send it to a Committee, but your Lordships will be the judges of that.
324 There is one other thing—namely, this procedure, about which my noble and learned friend Lord Buckmaster seemed to have some hope, if a Judge could investigate these matters at an early stage. The Judge is to have no evidence before him except affidavit evidence, and he has to read that, and then he has to decide whether there is any reasonable probability that the action will succeed; that is to say, whether it is at all likely that the plaintiff will succeed in showing that the defendant was intentionally libellous or was negligently libellous. I suppose the first thing the Judge would have to do would be to read the book, and I am sure that in his place rather than do that I would resign. In the second place, the best clue to the rights and wrongs of a libel action is to see the parties in the witness box. The Judge under this preliminary procedure would not be able to see them. He would have to look at an affidavit, perhaps sworn by an affidavit clerk. He would say to himself: "There is no subject in the common law in which it is more necessary to take the opinion of a jury than on the question of reasonable and probable cause." I should say the same thing regarding the reasonable probability of a jury finding one thing or another. I should say: "I shall certainly let this go into Court." Then you would have the expense of a pretty full dress hearing without the parties being present, and then have the further expense of going into Court in the long run.
The Authors' Society naturally and laudably endeavours to support the cause of its own members, many of whom I have no doubt have suffered considerably by being pestered with actions that never ought to be brought: but I do wish, when any attempt is made of that kind to alter the law in order to suit a particular set of cases, that the parties would first of all consider the other side of the matter and say to themselves: "What difference will this make to the people who are the victims of our unintentional wrongs?" and "How far are we justified in order that we may not get into trouble unless a good deal more is proved against us than has to be proved against other people, in asking the Legislature to say that people who 325 are injured by our Society shall have more difficulty in Retting damages than if they wore injured by anybody else?"
§ THE LORD CHANCELLOR (VISCOUNT CAVE)
My Lords, this Bill has received a very critical and faithful examination at the hands of noble and learned Lords who have spoken, and it only remains for me to state in a few sentences the view of His Majesty's Government. Clause 1 is plainly intended to meet the case which occurred in the well-known decision in Jones v. Hulton, the case where a writer, quite accidentally, not knowing of the existence of a certain person, used his name as the name of a character to whom he attributed certain misdeeds. It is a surprise to me that that case should occur so often as we are told it does occur. I should have thought it quite an exceptional case, in which not only the name but the attributes of the character fitted so closely a living person not known to the author, that that living person thought it worth while to put on the cap and to seek to obtain damages.
But we have been told by a very distinguished author of fiction that that ease does occur pretty often, and that ho knows of many cases where damages have been claimed on that ground. If that is really so I think, possibly, the law requires consideration, but I doubt whether Clause 1 is quite the remedy which ought to be applied. It is rather hard on a person to have his name used, and used in some unsavoury context, and not to have some chance of defending himself, and of clearing his name, and I think that if anything at all is to be done the burden of proof should be laid on other shoulders. You should not enact that the plaintiff, in such a case, must prove that the novel was intended to refer to him, but you might perhaps give the, defendant a chance of proving that he had no knowledge at all of the plaintiff's existence, and certainly did not mean to refer to him, and that he took all proper care in order to avoid the mischance that has happened. If the noble Lord turned this clause round in the way I have described there might, I think, be something to be said for it.
With regard to the second clause it proposes a kind of interlocutory procedure for stopping an action of this kind. I must say I think it wholly objectionable. The effect of it is this, 326 that the defendant may take out a summons on mere affidavit evidence, which I suppose would not be the subject of cross-examination, and by that means stay the action. He may have a trial run. I am sure that in many a case the defendant would have a trial run. The effect is that there are two trials, or two hearings, one partial and the other complete, and it might often happen that an action which really had some substantial foundation might be stayed in this way without the plaintiff having a chance of getting his case properly before the jury. I had a letter yesterday from a very distinguished counsel who says:I am sure there are many cases which I have won which would have been stopped in limine if this procedure had been generally applicable.My noble and learned friend Lord Buck-master suggested that some such procedure might be applied to stop in this way all frivolous or unfounded actions. There is a remedy. There is power already under existing rules to stop an action which is frivolous and vexatious, and with these powers in existence I do not think it is possible to propose that in this special category of actions this special remedy should be provided. About Clause 3 I will say no more.
As to Clause 4, after the speeches which have already been made, I can only say that I think it is hopeless. It applies to criminal and summary proceedings. I do not know what distinction is intended to be drawn there, because summary proceedings are criminal proceedings; and besides, in proceedings in cases of blasphemy, sedition or obscene language there is no summary proceeding at all. But it applies to cases where the author is a foreign author, who may be far away, and the effect of the clause would be to stay a prosecution and deprive the prosecutor of his remedy and the defendant of the chance of making good his defence. Possibly the foreign author would not come here as a defendant, but only as a person affected, simply as a kind of intervene!-. If the publisher wishes the author to be heard in a case of that kind his simple course is to call him as a witness. If the defendant chooses he can do so.
I have shown that only in Clause 1, and only if that clause is turned upside down, is this Bill likely to provide any remedy, and if from that point of view 327 the noble Lord thinks fit to proceed with the Motion for the Second Reading—although I think it would be better if he drafted a shorter Bill dealing more closely with the facts—and if the House thinks fit to accept the Second Heading, I hope the proposal of the noble and learned Lord to refer the Bill to a Select Committee will be accepted so that the promoters of the Bill will have a chance of proving whether there is or is not a real need for a Bill of this kind.
My Lords, after the very weighty speeches from noble and learned Lords I should be ill-advised to proceed with the Second Reading this afternoon. There are, however, one or two observations I should like to make. Lord Buckmaster said that there would be two points always present to your Lordships—one, a desire that writers of fiction and authors generally should suffer no limitations in their imaginative art and, the other, a desire to afford protection to the private person. The whole of the criticism against the Bill by three noble and learned Lords who have spoken has been directed to the second point mentioned by Lord Buckmaster. I think Lord Darling was under a misapprehension when dealing with Clause 3 as to what I understood the Bill would do. The Judge would not himself have to find a character or name called Pickwick. He would say that the name has to be altered and leave it to the author to effect the alteration; and with regard to the case of Mr. Justice Stareleigh he may say: "If you say he is making notes with a pen that has been dipped in ink it would meet the case."
The only other observation I have to make is with regard to the criticism of Lord Sumner on Clause 4. It was certainly not the intention of any one responsible for the Bill, and certainly not my intention, to make it easier to publish blasphemous, seditious and obscene works. What was in mind was the case of a man who has written what he believes to be a thoroughly religious book and someone says it is a blasphemous book and brings an action against the publisher. The publisher thereupon agrees to suppress the book. The author for the rest of his life, not having been a party to the action, is under the stigma that he has written a book which has been decided to be blasphemous. It is still more a stigma 328 in the case of a book that is decided to be obscene.
The greatest medical books have been under that stigma at one time and another. There is a well-known medical book published in five or six volumes. When the first volume was published in this country someone brought an action alleging that it was obscene, and the publisher agreed to suppress the volume. This is the only country in the world in which that work is not now known. It was to meet that kind of case that the clause was designed, in order that the author should be able to state why he has written the book and why in his view it is neither blasphemous, nor seditious nor obscene. The Lord Chancellor said he may be made a witness. That is perfectly true, but the publisher need not make him i a witness and may agree to suppress the work without calling him at all. However, after what has fallen from those who are much more qualified to speak as to the law of libel than I am, I respectfully ask leave to withdraw the Bill in order to reconsider the points raised and possibly introduce a shorter Bill.
§ Bill, by leave, withdrawn.