§ Order of the Day for the Second Reading read.
My Lords, I should begin by reminding you that last year I introduced a Bill to amend the law of libel at the request of the Incorporated Society of Authors, Playwrights and Composers, on the committee of management of which I then was and have still the honour to be. We had a debate which, to me at any rate, was interesting and instructive and after which, in view of the criticism directed against the Bill, I thought it better to ask leave to withdraw it with the intention of introducing another Bill. I do not regret at all the discussion that took place last year or the Bill that I then Introduced. It received in the country a considerable measure of support, and even so moderate and in this matter so impartial an organ as the Manchester Guardian said of last year's Bill:—If the Peers are in any way eager to defend a minority from preposterous injustice its progress should be assured.However that may be, it did, in fact, meet with very severe and learned legal criticism. The criticism was especially directed to Clause 4 of last year's Bill, in which a provision had been included to make it obligatory that any author whose work had been attacked on the 297 ground that it was seditious, blasphemous or obscene should be necessarily included as a defendant.
I thought then, and I think still, that it is very hard that a man's work should be dismissed without his being able to defend it in any way. In the present circumstances, if the publisher alone is made defendant the work complained of may be suppressed without the author being able to represent his own point of view. It is true that some very well known medical works have suffered under that ban without the authors being able to explain them. Nevertheless, I think it only fair to say that the weight of criticism directed against that clause convinced me that in spite of the possible hardship to the writer, the evil, or the impracticability, of necessarily including the author as defendant was greater than the hardship. I have therefore, in the Bill to which I ask your Lordships to give a Second Reading this afternoon, omitted the whole of that clause and any reference to that hardship. The main principle that I wished to see enforced in the Bill of last year was the protection of a writer from being sued for libel on wholly unjustifiable grounds, and the main clause enacted that it should be obligatory upon the plaintiff to prove that the defendant intended to refer to him.
Some discussion arose amongst noble and learned Lords as to whether that in fact changed the law, but that is now irrelevant, because I have, in the Bill now before your Lordships, endeavoured to follow out exactly a suggestion which fell from the Lord Chancellor. I should like to say how very much I regret that he is not able to be present this afternoon. I had delayed the Second Reading until this afternoon, in the hope that he would have recovered, but I understand that he is again afflicted with the same cold and is not able to be present. The Lord Chancellor suggested, although I think he was not unfavourable to the main principle which I had in view, that I was attempting to attack the matter in the wrong way, and that therefore it would be better to turn the clause round and make it obligatory upon the defendant to prove that he had not intended to refer to the plaintiff.
Since the Lord Chancellor is not present I think it would be only fair, so 298 that I should not misrepresent what he said, if I quoted his exact words from the OFFICIAL REPORT of last year. He said:—…. 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.I have endeavoured as far as possible to carry out exactly the suggestion made in that paragraph by the Lord Chancellor. I have confined the Bill to that and to that alone. I hope it will not be said that I have not been able to profit by the learned criticism directed against my Bill last year.
There is another difference. In the Bill of last year reference was made to literary or dramatic work. It was pointed out that possibly that was a rather difficult thing to define—that certain things claiming to be literary might in no sense be literary. I do not know whether it was a really serious objection. It would seem to me that, taking the ordinary meaning of the words, anything written would be taken to be literary and anything which could be acted on the stage would be taken as dramatic, without the application of merit which later usage has added to those words. In view of the criticism made, however, all reference of that kind is omitted from the present Bill. The Bill as it comes before you this afternoon is wholly general in its application and not special. Here, again, an attempt has been made to meet the criticism that the Bill of last year created a special class. One noble and learned Lord said it created a special class, "neither numerous nor meritorious." Without going into either the accuracy or the courtesy of that description, I think that this Bill at any rate does not bring in any suggestion of legislation for any special class.
I would not attempt, of course, to hide that the benefits that may be expected from it specially concern the writing profession, 299 because they and they alone are unable to avoid the dangers which lie in front of anybody who tries to write and produce living characters. The object of this Bill is to sweep away from all writers the danger of a particularly insidious and mean form of blackmail, and that is its only object. It has no intention of depriving anybody justly, or even in any way reasonably, aggrieved of his present procedure at law. It is intended to meet solely the constant attempts of people to profit by coincidences in the works of writers. That is a practice which is, unhappily, growing. It has always, of course, been possible for a person to say that some character in a story, whether that story were in the shape of a novel or a drama or even a poem, applied to him, but it is only of recent years that the reading public have begun to see that it is possible to make money out of such a chance coincidence, and every year there are cases where writers are threatened with libel actions by people who claim that some character is obviously meant to refer to them.
It is no doubt a consequence of the growth of the reading public, but I think it also springs from the well known case of Jones versus Hulton, which for the first time showed that there was a possibility of extracting money from an wholly innocent author. I am informed that since that well known case there has been only one case in which any real grievance was made out. But every year there are a number of complaints made against authors, not always of course brought into Court, where they allege that they have suffered some grievance because their name has been taken by the creator of a character. This Bill, therefore, is not aimed at all at the genuinely aggrieved litigant; it is aimed at the class which the noble and learned Lord, Lord Buckmaster, described in last year's debate as "hateful to every form of society, your needy and speculative litigant."
I would point out that the writing profession is unable to avoid this danger. Any one else can avoid running the risk of being accused of libel by refraining from putting pen to paper, but by his very nature the writer cannot do that, because his whole livelihood depends 300 upon his writing. Therefore, if he is carrying out his profession at all he is, as has been said by one well known author, an open target for anybody who desires to shoot at him. And it has been said that "the law, in its administration anyhow, always tends to regard the literary man as an irresponsible scoundrel, who may without responsibility be attacked." That is the position in which all who engage or indulge, whether as a hobby or as their profession, in writing find themselves to-day. I would ask your Lordships to consider the actual facts confronting anybody who wishes to use his imagination in literature. It is necessary nowadays for him to try to give some verisimilitude to the characters he creates. In old days it was possible for an imaginative writer to choose names which by no possibility could be human names. There are plenty of examples, of course, in such a work as Bunyan's "Pilgrim's Progress," and it is a very frequent practice, for example, of the Royalist dramatists. They took abstractions and so forth and they labelled them with names. No reader to-day would stand such a practice.
It has been suggested that the difficulty might be overcome by giving either initials or numbers. I wonder how many of your Lordships would read any work of imagination solely concerned with the adventures of Mr. A., Miss B., and Mrs. C., or Mr. One, Miss Two and Mrs. Three. It is not a practical proposition. The writer therefore, when he has thought of his story, has to choose names for his characters, and he has to choose them as far as he can with some degree of affinity to the characters that he is trying to create. It has been suggested that it would be quite possible for him to choose names wholly improbable, even quite impossible. There are no impossible names. I ventured last year to quote an example where, even before the book had been published, in one of the preliminary advertisements by the publisher it was stated that the book was concerned with the adventures of two people, one of whom, Firmin Bradbeer, owed his success in life to his wife's charms. I could not, and still cannot, see how by any means in the world that could have been held to be libellous. While the surname of Bradbeer is a very unusual one, the 301 Christian name of Firmin is to me wholly unknown, and it does seem to me an almost impossible coincidence that the two should have been put together and have found a living representative.
But the result was that even before the book had been published a gentleman saying that his name was, in fact, Firmin Bradbeer wrote and complained bitterly of this usage. He was not content with an apology, he was not content with the alteration of the name, he wanted damages. He saw a chance, because he held such a very unusual name, to extract money from the unfortunate author who had invented a name which he thought no one could possibly use. And the more unusual the name the greater the danger, because obviously there cannot be many people of that name, or such a similar strange conjunction of names, in the Kingdom. But I think it would pass the wit of any man to invent any name, which yet might sound as a reasonable human name, to which someone in the four corners of the world would not lay claim.
Another alternative of the unhappy writer is suggested of always choosing perfectly ordinary names, on the principle that there is safety in numbers. Well, there may be safety in numbers, but it means also that the number of people who arise and say, "This is me," is, of course, enormously increased. I have always been surprised, except that it was not fashionable in those days, that many people at the time that Fiolding wrote "Tom Jones" did not claim that they had been very grievously libelled in their moral character. And even beyond the question of names, supposing even the author does not name his character at all, he has merely to introduce someone—it may be only a minor character, as it would be if he were not given a name—and to say, for instance, "Not twenty miles from a cathedral town in the West there existed a shady auctioneer," and someone will immediately arise and say: "I live not twenty miles from Salisbury; that is a cathedral town, more or less in the West of England, and several of my friends think my methods are not very good; you mean me."
The real aggrieved person does not suffer in this way. This danger hits the innocent author. It is quite easy for any clever author to commit what I myself think is a crime, that of putting living 302 people without their permission into books. It is often done, and it is very often done quite harmlessly. I do not myself think it ought to be done at all. But anybody who is at all a clever writer can, in fact, caricature a living person in such a way as to make it impossible that a libel action should be sustained. I can think of a book which was quite successful, published not very long ago, dealing with a well-known public man; I do not think anybody could doubt that the personage described in that book was intended for a certain person, and yet, because of the cleverness with which it was done, I do not think it would have been possible for any libel action to be sustained.
It is not the intentional libeller who suffers from these people and it is not the prosperous author. This is a case where it is the poor author who is affected. It is often said that the only way in which to deal with the black mailer is to take him into Court and that is what the well known and therefore the prosperous author always does. I gave last year a case where a well-known author was subject to this kind of blackmail. He promptly took the blackmailer into Court and had no difficulty in proving that the gentleman who said the book referred to him was only two years old at the time the book was written. But it cost that author, even in his successful defence, a great deal more than it would have done to pay a small compensation to the man who hoped to make money out of it. The poor author very often cannot afford to take the blackmailer into Court. He would rather try to settle it on a cheap basis and have done with it.
I gave your Lordships a number of cases last year and I will only give one more this year—quite a recent one—where in a novel, not by a well-known author, there was one single allusion to a gentleman who was in the novel described as an actor. The only sentence was that he had returned with his leading lady. In itself it, would seem not very harmful, but the author was immediately written to by some one who claimed that he bore the name of the character in the book who was an actor and that he required compensation for the alleged wrong. It was not sufficient, for the author to show that he had no 303 knowledge whatever of the theatre and no knowledge whatever that this actor, not well-known, existed with this particular and quite ordinary name. It was suggested by some one who spoke in last year's debate that these cases were not very often brought. In the Society of Authors it is quite a common thing for complaints of this nature to be brought against their members and the menace against anybody who publishes an imaginative work is so real that there has been grave consideration given to the question of insuring against the risk. That is a possible way of palliating the dangers which lie before the imaginative writer, but I can hardly believe that it is really satisfactory that any people pursuing a harmless and even honourable profession should have to insure against the needy and blackmailing litigant.
This Bill has endeavoured to meet all the criticisms that were directed against the Bill of last year. It has been under careful consideration ever since and I think I may say that in the Press and among all those connected in any way-with writing there is overwhelming support for a Bill of this kind. One other observation. It could not have failed to have struck any one in the debate last year that all the noble and learned Lords who took part—and I think no one except noble and learned Lords did—addressed themselves against the writers' position. There was a sentence or two in the speech of the noble and learned Lord, Lord Buckmaster, saying that it was most important that the imaginative writer should be able to exercise his gifts untrammelled, but apart from that every-noble and learned Lord directed his attention to defend the litigant. I hope I have endeavoured to show that the litigant in this case is the speculative litigant and not the really aggrieved person.
It has been said that "of all nations the richest in literature—England accords her writers the least respect." I do venture to hope that your Lordships will do something this afternoon to redress that position. I have said that every other profession can avoid this danger. The writing profession cannot without starving. Though it is true that no one is compelled to write imaginative literature, yet I think no one will doubt that the whole world would be immeasurably 304 the poorer but for the treasures of English literature, the greater part of which consists in one form or another of imaginative work. I am asking your Lordships in this Bill to give some measure—and a very moderate measure—of protection to the careful and innocent writer exercising his calling to the best of his ability. Your Lordships will notice that I have tried to follow out in three subsections the exact suggestions made by the Lord Chancellor, and the effect of the Bill will be simple. It is that, if it becomes law a writer will be able to make good his defence if he can show that he had no intention of referring to the plaintiff, that he has not any knowledge of the existence of the plaintiff, or any reasonable ground for supposing the plaintiff existed and, further and finally, that he has exercised all due care in the selection of the name. I hope your Lordships will view not unfavourably this small measure and give it a Second Reading this afternoon. I beg to move.
§ Moved, That the Bill be now read 2a.—(Lord Gorell.)
§ LORD SHANDON
My Lords, I did not have the advantage of hearing the debate which took place on the first edition of this Bill when it was introduced to your Lordships' House last year, but I have the advantage, therefore, of being quite unprejudiced in the views which I have formed of it. I listened with the greatest care and attention to the noble Lord who moved the Second Reading and I regret to say that he has not convinced me that the Bill, in its present form at any rate, ought to pass your Lordships' House. One cannot help feeling, in the case of litigation, that it should be thought curious that an author should have to pay for the misfortune of having written a libel. I confess that I share the view which the noble Lord says was felt by your Lordships last year, that we must not forget the position of the person who is libelled.
There is a very curious thing about this Bill—at least it is curious to one who has had the misfortune of having been brought up in old-fashioned views of the position of a person who suffers a wrong. This Bill presupposes that a person who is in fact libelled, a person to whom honest men conceive that the libel refers, a person whom the jury are 305 of opinion has been libelled, is to be left absolutely without remedy. It is a very strong thing to propose such an alteration in the law. I do not think that is an exaggerated statement. If a writer of fiction happens, in fact, to describe a person in such circumstances that reasonable men form an opinion that the libel fits the person who brings the action, and if the jury are of opinion as reasonable men that it does fit him, he is entitled to recover damages. Why should he not? The innocence of the person who writes the thing for his own profit, the innocence of the public who have got something to tickle their palates, cannot affect the feelings or the loss which may be suffered by the person who is libelled. What remedy would a person in such circumstances have supposing this Bill becomes law? All that would be necessary would be that the author should prove that he did not intend to refer to the person. That goes certainly some distance, but it does not affect the person who is libelled.
§ LORD SHANDON
It does more than that, but it does not seem to make much difference in favour of the plaintiff. He may not know the person, but you must show that he was without knowledge of the existence of the person. The clause says it is a good defence if he does not know or is without recollection of the person. The third subsection refers to his not having shown any want of care in finding out. It must be noted that these subsections are to be lead as cumulative. Each subsection refers to the previous subsection. The second subsection says "without knowledge of the existence" and the third subsection says "without any want of due care or caution shown in failure to know or recollect." In the second part of subsection (2) the words are "without anticipation of the possibility that the alleged libel might be read or understood as referring to the plaintiff." That means that you get out of it if you show, or if you swear, that you did not intend to refer to, and that you did not recollect the existence of, the person, and that you were not guilty of negligence.
Of course it is always open to a person to swear that he did not know, and it 306 may be said that it is for the jury to determine whether he was negligent in making inquiries. That is what it comes to. But suppose he does that, why should a person who is wronged be deprived of any remedy? I take it that the noble Lord who supervised, if he did not draft, this Bill must have had in his mind the existing Statute dealing with the condition of affairs which arises in the case of newspapers. It was considered for a long time monstrously unfair that newspapers, of which the editors and proprietors were innocent, should have no protection. The law as it now stands is settled by the Statute commonly known as Lord Campbell's Act as amended in 1845. Lord Campbell's Act seems to deal with that in a satisfactory way and it rather seems that the authors of this Bill must have had that Act in mind. But they have done a very singular thing. They have left out of this Bill a clause which is contained in the amending Act to Lord Campbell's Act. That clause provides that though you may prove that there was no malice, though you may prove your innocence in the popular sense, you must put your hand in your pocket and bring some money into Court. The defence is made by the amending Statute to be futile unless you do put your hand in your pocket and bring money into Court. If the Bill had followed that should have been rather favourably disposed towards it, but without such a saving clause it goes too far and I certainly should not vote for it.
§ LORD DARLING
My Lords, on the occasion when the noble Lord's Bill was last before this House I was one of those who took part in opposing it, although I did not even then go the length of saying that I would vote against the Second Reading. I had intended, as I explained then, to put down a proposal that it should be referred to a Select Committee. But I admit I did speak against it as strongly as I could in the form in which it then appeared. The noble Lord withdrew the Bill. He has reconsidered it, he has had it redrafted, it appears now in an entirely different form, and I think one may say of him that he now "brings forth fruit meet for repentance." One consequence is that I who opposed it last time would vote for a Second Reading of it on this occasion. As I understand it, this Bill 307 is mainly for the relief of authors who write and who may incautiously without any kind of malice write a libel, which is not a difficult thing to do. The noble Lord has directed his Bill chiefly to the relief of those persons. I think, on the whole, although I shall have some criticism of it to make, he has fairly done that.
As I see it, this Bill is an attempt to apply the maxim that ignorance of a fact is an excuse although you may do something which hurts somebody else. It is also an attempt to apply in some measure the doctrine of negligence to the writing of a libel in such a way as to give an excuse to the writer if he has not been guilty of negligence in what he did. The Bill proposes that the writer of what is a libel shall have some defence which he does not now possess. I said just now that it is very easy to write a libel. The legal definition of a libel is any publication, in print or by means of drawing or picture, which holds any person up to hatred, ridicule or contempt. Now, do we not know very well of people who are greatly esteemed who once a week make drawings which hold other people up to at least some amount of ridicule? We buy the paper and we look at the picture because we think it will amuse us and make us laugh. Sometimes it does. To draw a statesman in the attitude and with the general habit of Mr. Micawber would be, if any one should dare to do it, actionable as libel, and a Judge in my opinion would not be justified in withdrawing the case from the jury and saying: "This cannot bring this statesman into the least amount of ridicule." He would have to leave it to the jury, but he would leave it to the jury in such a way that it would be impossible for the plaintiff to recover damages, that is to say, so far as a Judge can in any way influence a jury. Some Judges have influenced them more than others.
It is still right, I believe, for a jury to return what is called a general verdict. That means that a Judge may tell them that they must be satisfied of this, that, and the other before they find a verdict for the plaintiff or the defendant, but the jury has always had the right, I believe—I have lately looked into Blackstone's "Commentaries" to see—to return what was called a general verdict. 308 It is true that, down to about Lord Hale's time, if they returned a verdict which was very unpalatable to the Judge they were prosecuted and probably punished for doing it, but that is a long, long time ago and that remedy is not now at the disposal of any plaintiff or defendant who is unfortunate in litigation.
What does this Bill do? It tries to apply these two excuses which I have mentioned. It says:—In any action or upon any indictment, information or other proceeding for libel, the defendant shall have a good defence (apart from any other ground of defence that may be open to him) if he proves that—I would pause there for a moment to say that this involves one very grave matter. To publish a libel is a criminal offence and a libel may be the subject of a prosecution or information by the Attorney-General. This Bill proposes to make these grounds a defence not only to a civil action, but to criminal proceedings—if he proves that the writing of the alleged libel and the publication by him thereof was done …without any intention of referring to the plaintiff and with some other conditions.
If this Bill goes into Committee it must be gravely altered in one way. It makes it a complete defence if the writer and publisher of the libel can prove all these matters which are set out in subsections (1), (2), and (3) as they apply. But to have a defence to the publication of a criminal libel it is not enough for the defendant to prove it is true: it is necessary for him to do something further. He has to prove that it is for the public benefit that the publication should be made. It does seem to me that the noble Lord by inadvertence has provided a complete defence because it says that he shall have a good defence if he proves the things which come below. There is no mention whatever of the saving of the present requirement that what he does should not only be done in such a way as to be a good defence to a civil action. It leaves out the further necessity that he should prove that what he did was for the public benefit. I think the noble Lord will see that that must be remedied if this Bill goes through Committee.
As to the rest, it seems to me that this is a fair protection to the person 309 who is only nominally or technically libelled and also a fair protection to the author who has inadvertently injured another person. It gives no right of action if he does something which is not illegal in itself and by pure accident hurts another. Judges have long seen that the law of libel did beat hardly upon perfectly innocent writers because in a very well known case—not a libel case—the case of Abrath versus The North Eastern Railway Company, Lord Bramwell, whose name ought never to be mentioned without reverence, said:—That unfortunate word 'malice' has got into cases of action for libel. We all know that a man may be the publisher of a libel without a particle of malice or improper motive.Surely the law ought to be amended if it so stands that a man may be sued by a person who has not sustained any real damage, because he has published an article or cartoon, though he has done it without a particle of malice or improper motive with regard to that person
The Bill, therefore, is justified when it says that, if the writer can prove all these things, he shall have a good defence. They are cumulative and he, and not the plaintiff, has to prove them. He must satisfy a jury of all these things. He roust satisfy them that he wrote what he did and published itwithout any intention of referring to the plaintiff.One would think that if he slid that he had not done anything very wrong in its publication, but he has got to go further and to prove other things. The word is "and" and not "or." He has to prove that he wroteeither without knowledge of the existence of the plaintiff or without recollection of his existence or without anticipation of the possibility that the alleged libel might be read or understood as referring to the plaintiff.Even when he has proved that he had no anticipation of the possibility of it being referable to the plaintiff he is still not entitled to a verdict. He has to prove in addition that he did itwithout any want of due care or caution shown in failure to know or recollect the existence of the plaintiff, or to anticipate the possibility that the alleged libel might be read or understood as referring to the plaintiff, or in failure to take steps to prevent its being so read or understood.310 We have had most pathetic appeals for the writers of novels and paragraphs made to us by the noble Lord who introduced this Bill. No doubt your Lordships are greatly moved by the account of their tribulations, but, if this Bill passes in this form, there will be another body of persons not altogether undeserving of sympathy and that is His Majesty's Judges. I am so little aware of how they are to get a jury to understand all these qualifications, one after the other, and to understand the difference between where they are cumulative and where they are alternative, that I am glad to think the duty can never fall upon me. I would suggest to the noble Lord that, if this is to be done, he must provide that the jury should not be allowed to give a general verdict for the plaintiff or the defendant. He must provide that these questions shall be put separately to the jury and that they shall have to return an answer, "Yes" or "No," to each of those separate propositions. Otherwise it might be that they would not understand the summing up, would not be capable of answering "Yes" or "No," and would fall back upon the old process of giving a general verdict for the plaintiff or the defendant or, in a criminal case, of "Guilty" or "Not guilty."
I hope that this Bill may be read a second time, but only because I hope and believe that it will receive very careful and minute attention in Committee. The law of libel—of defamation—is something peculiar in itself. It is different from actions arising from negligence or from intentional illegal acts, and I think therefore that it may well be that it should be obligatory upon juries to return verdicts in a form that would show that they really did understand the various matters upon which they must arrive at a conclusion before it can be justifiable for them to return a verdict for one side or the other.
§ VISCOUNT SUMNER
My Lords, it is a little difficult to know how your Lordships would like a Bill of this kind to be treated in debate. This is a Bill to alter in a material respect the Common Law of this country. Which do your Lordships think is the better course to pursue: that those members of your Lordships' House who bear the somewhat invidious title of Law 311 Lords should regard themselves as called upon to advise your Lordships to the best of their ability on such subject, or that they should recognise that law lectures are more appropriate to some other place than your Lordships' House? For my part, I have hardly at this moment been able to make up my mind in which capacity your Lordships would view me with the less disfavour, whether I were to do that which I am doing and try to assist your Lordships, or were to do what I think I had probably better have done—sit still and say nothing. But this is a purely legal question, and I think on the whole, without professing to have formed any definite conclusion upon this Bill—I had a very definite opinion about its predecessor—I may be allowed to say a word or two upon the subject.
If the Bill is to have a Second Reading and to go into Committee, then, as my noble and learned friend has very justly pointed out, it is very greatly in need of considered amendment, and I hope that he will propose such amendment when we come to that stage. But even at the present stage one cannot get away from the fact that this is a Bill to enable some persons who get their living by writing to inflict actionable wrongs, and possibly severe wrongs, on persons who at present cannot be wronged with impunity. It is a Bill to enable a particular class to calumniate others in circumstances that do not apply to other forms of defamation and to escape from the necessity of making compensation for what they have done by saying, and satisfying a jury, that they did not mean it. There is no doubt that this is so. I do not know whether it is better that people who write novels, poems, and paragraphs should select the names of some possibly living persons as the subjects of their art, or that they should confine themselves to the old-fashioned modes of anonymity and sneak of Sir A—B—, or Sir X—Y—, or Lady P—T—, with whom our grandmothers were familiar. But what they want to do now is quite clear. They want to try to publish things which, in the view of persons who can be called before a jury and are probably credible persons, referred to the plaintiff, and to say: "Whether your friends took it to refer to you or not, whether it has made you smart or not, whether it held you up to hatred, ridicule and contempt or not, you 312 do not get any money out of me provided I can prove the things that are set out in Clause 1 of this Bill."
I would ask your Lordships to observe that this applies only to libel, that is to say to words printed and published, but not to slander — words spoken and published. The law of slander is not included in this Bill. A person may make a speech or act a part in a play or use language or get himself up in a costume or, in any other way except in writing, draw attention to an individual and make him appear to be a victim of ridicule and contempt, and the law remains as before. It is no good for him to say that he did not mean it. But if we come to things that are printed and published, this Bill is to give protection. I think it requires a good deal of consideration before we give even a Second Reading to a Bill the object of which is to enable one class of His Majesty's subjects to disport themselves in their compositions at the expense of another class of His Majesty's subjects, and it does not seem to me that this is one of those classes of case in which you can defend yourself simply by taking off your hat and saying: "Sorry." One wants a little consideration before one agrees to this.
What are the conditions on which the defamer—a man who, on the hypothesis, has unfortunately hit upon somebody or other and, either by description or by name or by some other reference, has made him a person whom the cap seems to fit—is to get off? He is to do so by asking the jury to draw some inferences or to accept some conclusion about his state of mind. He begins by saying: "I really did not mean you,"—without any intention of referring to the plaintiff—and he has to go on and say one of three things. He may say: "I really did not mean you and, what is more, I did not know that you existed," which seems to me rather to add insult to injury. Or he may say: "I have heard of you, but I had forgotten all about You." That does not improve matters. Or else he may say: "I really never anticipated the possibility that what I wrote might be read or understood as referring to you." Of course that may merely be because he is a thoughtless and stupid fellow and thought of nothing but 313 his own point of view, but that is what the Bill does and that in itself may be painful to the person who suffers. I do not know whether your Lordships recollect a recent case in which somebody said that he was told that a publication was by A.B., and went to Who's Who to see if there was such a person. In the circumstances it certainly did seem a pity, from the point of view of A.B. and his friends, that it should be necessary to go to Who's Who.
Then you go on to say that the writing was not published—without any want of due care or caution shown in failure to know or recollect the existence of the plaintiff, or to anticipate the possibility that the alleged libel might be read or understood as referring to the plaintiff, or in failure to take steps to prevent its being so read or understood.Obviously the last provision will not do much good to anybody. You have only, I imagine, to put a slip at the beginning to say: "This novel does not refer to anybody, living or dead, born or unborn, it must not be read or understood as referring to the persons whom it names. It is a purely ideal composition"—although it may be a story about modern times and modern incidents, which, without this warning, it might be easy to suppose referred to eminent political characters or others. Then he is to go to the jury and say: "I want you to believe that. I was not lacking in care or caution in failing to know this person." Imagine the feelings of the person who is smarting under an actual libel, which has touched him, when he hears the jury being asked to decide upon that view, and when his success or failure is to depend upon his ability to persuade the jury that for his part; he was really such a person as could not be forgotten or unknown except through lack of care or caution. How is he to do that? In practice the thing will turn upon the success or failure of the cross-examination. On the other hand, if the author is some stupid person, who has gone about the business badly, the jury is not very likely to accept his stammering assurance that if he had once heard of the right rev. Prelate, or the noble Lord, or the eminent film star, or whoever it may be, he had in fact completely forgotten that person's existence.
I do not think these things are very practical, but there is another way, 314 which is quite practical of dealing with these things that the Bill does not touch. If a jury thinks that the publication did touch the plaintiff, that the words are calculated to refer to plaintiff, but that the author was a harmless being, a member of some reputable authors' society, who had never written a book before or committed any similar offence of that character, who really did not mean to do any harm, who lived in a remote place where he never heard of prominent characters of the day, and so forth, a very small amount of damages would be deemed to be sufficient, and it is in the hands of the jury so to modify the amount they give as to deal with the very point dealt with in Clause 1. I know that the noble Lord opposite will say: "What about the costs?" Because in those circumstances, while there may be only a modest sum in damages, an immodest amount in costs might have to be provided. That is true, and I have no answer to that, except that I do not see why A.B. should be libelled by an eminent author, and get no remedy at all unless that eminent author be compelled to pay the costs.
It is not difficult to avoid these references. Your Lordships must remember one of our greatest novelists whose works although he is dead are still appealing to the reading public. I refer to Mr. Nat Gould. He, in order to avoid this kind of thing, was in the habit of selecting the names of his characters from a safe place—namely, the index to Bradshaw's railway guide. Thus when he was selecting a name for a bold, bad baronet who pulled a horse he would take the name of Miles Platting, a place near Manchester, or Sir Lambeth Bridge, or something like that. It did no harm, and nobody could pretend that under such a name he was being libelled, and if he had pulled a horse he would not want to say so. I feel that I come to a rather lame and impotent conclusion, because I do not propose to venture to advise your Lordships either to accept or reject the Bill, but I wish that your Lordships' eyes should be opened as widely as possible to what is being done by this Bill. You are shifting the burden of some writer's mistakes from him to the person whom he unintentionally damages. You are doing that without any sufficient proof. I should have thought that the state of things 315 as at present causes no real grievous harm, or none which could not be avoided by some less drastic interference with the Common Law.
§ THE LORD PRIVY SEAL (THE MARQUESS OF SALISBURY)
My Lords, no one can regret more than I do the absence of my noble and learned friend the Lord Chancellor this evening,, because as I listened to the wealth of legal criticism which thundered round our heads for the last hour, I felt that the intervention of a mere layman in this discussion would be viewed by your Lordships as a most audacious proceeding. Yet something must be said on behalf of the Government, as to the way in which we propose to act in reference to the Bill of the noble Lord. I hope your Lordships will extend to me every consideration if I make any grievous legal mistake in the very few observations which I am about to make, but let me recall to your Lordships, in two or three sentences, the Parliamentary history of this Bill. Last year the noble Lord introduced a Bill on the same subject, which did not find favour and was withdrawn. In the course of the debate on that Bill my noble and learned friend the Lord Chancellor, among many other noble and learned Lords, made some very trenchant criticisms and offered some suggestions to the noble Lord, and I am bound to say, and I think it is fair to say, that the noble Lord has most courteously availed himself of every one of those suggestions and inserted them in the Bill.
The main point, of course, has reference to this question of libel. As I understand it, under the law as it at present stands, it does not matter what the intentions of the author may be, or what are the circumstances in which the utterance is made: if in point of fact he does libel, it may be absolutely unintentionally, an individual, that individual is entitled to damages. The Bill of last year, as the noble Lord admitted, did bring some kind of relief to authors in those circumstances, and he proposed that the plaintiff who had been libelled must prove that the author intended to libel him. That did not find favour, it was held to go much too far, and now the noble Lord has turned that provision upside down and says that the defendant may now prove that he did not intend to libel the plaintiff.
316 Having regard to the history of this Bill, and the concession which has been made, we are I think put in rather a difficult position. I confess I feel the enormous weight of the criticism which has been made by noble and learned Lords in all parts of the House. Undoubtedly the Bill, though it seems to be a simple and short Bill, involves a very complicated subject, and I do not feel confident, nor do the Government, that the Bill in its present form ought to pass into law. But I think—and this, I believe, is the view of those who have advised me in this matter—that the noble Lord has shown a prima facie grievance on the part of perfectly innocent and well-intentioned authors which ought to be considered by your Lordships. The authors come to this House, as do many other persons who are suffering under grievances, and say: "Here is a grievance, we ask for a remedy." It does seem a little hard that in these circumstances your Lordships should absolutely "turn down" the proposal, and it is all the harder when, in deference to criticism, made with great authority, the noble Lord has altered his Bill, trying—I do not say yet succeeding—as far as he can to meet the difficulties which have been alleged on the other side.
I should feel very reluctant, therefore, speaking for the Government, to refuse a Second Reading to the noble Lord's Bill. In saying that I think I am really speaking very much in harmony with what has fallen from my two noble and learned friends who sit behind me. Lord Darling certainly said that he was prepared to support the Second Reading, although he looked for extensive Amendments in Committee: and my noble and learned friend who has just sat down, and who speaks with great authority, has not advised your Lordships to reject the Second Reading of the Bill. He has explained how very difficult the subject is, how full of pitfalls, how much in need of very careful consideration the Bill is before it passes into law. All that he has done, but he has not said that he advises your Lordship's House to reject the Second Reading of the Bill. I do not feel that the Government can go further than my noble and learned friend has done in that respect.
We cannot suggest to you that it would be wise to reject the Second Reading, 317 but I wonder whether I might make a suggestion which might perhaps get the House out of a considerable difficulty? It is clear that a Bill of this kind cannot pass without the most careful scrutiny. There are, all sorts of difficulties, and, moreover, they are difficulties of a very technical kind, or rather, they are things difficult for laymen to follow, even instructed laymen like your Lordships. I cannot help thinking that this is a case where we ought to pursue the well-known device of having this Bill, before it proceeds further after the Second Reading, considered by a restricted body, technically competent to deal with its intricate possibilities—namely, a Select Committee of your Lordships' House. I think that would probably be the wiser course. I am advised by those who are much more competent on this matter than myself that that would be an agreeable proposal to make.
Of course, I am not going to anticipate what, if your Lordships were good enough to consent to such a plan, the result of the considerations of the Select Committee might be. It might turn out that, when they had torn the thing to pieces, it was impossible to proceed on the lines which the noble Lord opposite proposes. If that is so, of course your Lordships will know how to treat the Bill upon subsequent stages, when it comes before the House again. But if, after proper consideration and very careful scrutiny, and after Amendments devised and recommended by those who are technically competent to do so are made, the Bill could be put into a safe shape, then we shall have done what we are called upon to do to remedy a legitimate grievance of those who come to us for redress. In those circumstances I would suggest that your Lordships should allow the Second Reading to pass, with a view to referring the Bill afterwards to a Select Committee.
My Lords, I think it is only necessary for me to say a few words after the speeches to which we have listened. The noble and learned Viscount, Lord Sumner, was either under the advantage or disadvantage—I am not sure which—of not having heard the speech with which I introduced the Bill. He ended his investigation of the Bill with a passage which 318 I cannot help thinking to some extent took away from the meals of his criticism, because he made the obiter dictum that it is not difficult for writers to avoid these references. I had endeavoured to show—and it could be shown in very much greater wealth of detail than I could put forward—that it is impossible for writers to avoid these references. He instanced Mr. Nat Gould going to a perfectly safe place, and I am afraid that one result will be that on his authority writers will feel that "Bradshaw" is a safe place, and we shall have a wealth of characters named after railway junctions. But I am far from saying that there are not people in this country who have not exactly the names that you will find in "Bradshaw"—indeed, I am perfectly certain that there are—and if people should name their characters after out-of-the-way junctions, or even village stations, still somebody will arise and say, "That is my name." That is the proposition which writers have to try to face.
And the noble and learned Viscount, I am afraid, is no lover of the imaginative literature of this country. I observe that he never referred to writers without putting in an epithet rather derogatory to them, such as "stupid" or "harmless," and to the writing of a book as being an offence. To those who take that view I am afraid that nothing that can be said by way of trying to make the path of the imaginative writer easier will have any effect. But I must take issue with the noble and learned Viscount upon one thing. He said that this was a Bill designed to enable one class to disport themselves at the expense of another. In my humble submission it is not, but it is a Bill to enable one class—namely, the class of writers—to disport themselves at all. At the present moment, by the nature of their calling and by reason of their calling, they are inevitably open to danger.
The noble and learned Viscount also said that this was a purely legal question, and the noble Marquess who leads the House semed to me to follow him in that view. I cannot help feeling that we do sometimes look upon these matters that come before your Lordships' House from almost too exclusively a purely legal point of view. After all, the imaginative literature of the world is a very great 319 asset in any national life, and it is really being affected by a practice of frivolous and needy litigants who have no real grievance. Perhaps it is only the purely layman's view, but I cannot help thinking that if any writer was, in fact, able to prove, as he is asked to do by this Bill, these three things, no reasonable body of men forming a jury could possibly come to the conclusion that any libel had really been inflicted upon the plaintiff at all.
With regard to the observations that fell from the noble and learned Lord, Lord Darling, I can only say as a layman that if it is thought desirable from a legal or any other point of view to amend this Bill I should be only too glad to avail myself of the opportunity. I feel hesitation with regard to the suggestion with which the noble Marquess ended his speech. Of course, if that is the view of the House then I am in the hands of the House, but, beyond that, I hope that at any rate your Lordships will give the Bill a Second Reading to-day, and then the question of its reference to a Select Committee will no doubt come up in due course.
§ THE MARQUESS OF SALISBURY
No, I could not, on behalf of the Government, assent to the Second Reading unless the noble Lord was content to refer the Bill to a Select Committee. That would be impossible. I am afraid, as far as I am concerned, I am unable to go further than that.
I misunderstood the noble Marquess. I thought he was willing to give the Bill a Second Reading and then leave it to the House; but, in view of what he said, I must assent to the proposal that it should go to a Select Committee, and I hope therefore that your Lordships will give the Bill a Second Reading.
§ On Question, Bill read 2a.
§ Moved accordingly and, on Question, Motion agreed to.