CHAPTER IV

LIBEL AND SLANDER

Little excuse is needed to touch on the law of libel and slander, owing to the constant flow of diverting cases brought in connection with this branch of legal activity. The King _v._ Mylius, arising out of a personal attack on King George; Howard de Walden _v._ Lewis,[13] an extraordinary instance of libel; De Forest _v._ Milner and De Forest _v._ Lady Gerard (two actions for slander) were among the notorious batch to be heard in the Royal Courts of Justice during Hilary Term, 1911.

There are many interesting points associated with libel and slander. Even the purely technical aspect of the subjects is often entertaining. Everyday life is full of slanders, perfect slanders too, many of them, but they are frequently, if not generally, of a non-actionable character, unless, of course, “special damage” protrudes itself into the situation in point.

According to Mr. Hugh Fraser, an authority on the subject,[14] or subjects, libel and slander are definable in this way: “A defamatory statement is a statement concerning any person which exposes him to hatred, ridicule, or contempt, or which causes him to be shunned, or avoided, or which has a tendency to injure him in his office, profession or trade. Such a statement, if in writing, printing, or other permanent form, is a libel; if in spoken words or significant gestures, a slander.”

“A statue, caricature, effigy, chalk marks on a wall, ‘signs or pictures, as by fixing up a gallows against a man’s door, or by painting him in a shameful or ignominious manner,’ may constitute a libel.”

If a plaintiff alleges “that he is the person referred to as the villain in a book or story which purports to be a work of fiction, he must prove (_a_) that the author meant to refer to him, and (_b_) that the work was so written that those knowing the plaintiff would reasonably infer that he was intended.”

To say of a barrister that he knows no law is actionable _per se_.[15] To impute incapacity to a journalist is also, it would seem, actionable _per se_. “In accordance with the common law principle that husband and wife are one person, ‘the uttering of a libel by a husband to his wife is no publication.’ ‘For many purposes they are,’ however, ‘essentially distinct and different persons, and, among others, for the purpose of having the honour and feelings of the husband assailed and injured by acts or communications made to the wife.’ Thus it has been held that sending a defamatory letter to a wife about her husband is sufficient publication.”

No action for slander will lie, without proof of special damage, unless the words of the slander (1) charge the person slandered with a criminal offence, (2) or where they impute to him a venereal disease, (3) or where they are imputations against a man in his office, profession or trade, (4) or where they attribute unchastity or adultery to a woman. In all other cases of slander the plaintiff must prove a definite temporal loss. The loss may be the loss of a client or customer, or the loss or refusal of some appointment or employment. The loss of a gift, whether pecuniary or otherwise, may be actionable, or of gratuitous hospitality, “for a dinner at a friend’s expense is a thing of temporal value.”

“Where the words are not _primâ facie_ defamatory, and where the plaintiff therefore intends to maintain that the words were defamatory by reason of their being understood in a special sense, he must be careful to insert in his statement of claim an averment specifying the defamatory meaning of the words complained of, and showing how they come to have that meaning, and how they relate to the plaintiff. Such an averment is called an _innuendo_.”

“It is no defence that the defendant uttered the words complained of in jest, ‘for jests of this kind are not to be endured, and the injury to the reputation of the party grieved is no way lessened by the merriment of him who makes so light of it.’”

“Slander, as such, is never a crime, though the words complained of may come within the criminal law as being blasphemous, seditious, or obscene, or as being a solicitation to commit a crime, or a contempt of court.”

“For words to be seditious they must be published with intent ‘to bring into hatred or contempt or to excite disaffection against the person of his Majesty, his heirs or successors, or the government and constitution of the United Kingdom as by law established, or either House of Parliament, or the administration of justice, or to excite his Majesty’s subjects to attempt, otherwise than by lawful means, the alteration of any matter in Church or State by law established, or to raise discontent or disaffection amongst his Majesty’s subjects, or to promote feelings of ill-will and hostility between different classes of such subjects.’”

The late Sir James Fitz-James Stephen has some interesting conclusions to draw as to what constitutes obscene matter in print. “A person,” he states, “is justified in publishing obscene books, papers, writings, prints, pictures, drawings, or other representations, if their publication is for the public good, as being necessary or advantageous to religion or morality, to the administration of justice, the pursuit of science, literature or art, or other objects of general interest; but the justification ceases if the publication is made in such a manner, to such an extent, or under such circumstances, as to excel what the public good requires in regard to the particular matter published.”

In a criminal prosecution for libel, “it is not necessary, as in the case of a civil action, that there should be publication in the sense of a communication by the defendant of the words complained of to some third party--it is sufficient if the words complained of be communicated by the defendant to the prosecutor himself, provided that their natural tendency is to provoke the prosecutor and excite him to commit a breach of the peace.”

It is interesting to note that in printed libels, _i.e._, in newspapers, books, etc., there is “a _primâ facie_ case of publication against the defendant where the manuscript from which the libel was printed is shown to be in his handwriting, there being no necessity to prove that he expressly ordered or authorized the printing.”

The defendant was “held liable where the plaintiff told some friends an absurd story about himself, and the defendant published it in his newspaper, simply for the purpose of amusing his readers, and believing that the plaintiff would not object.”

“The proprietors of a newspaper sued jointly with his negligent editor and the author of the libel cannot obtain compensation from either of them in respect of the damages which he has been obliged to pay to the plaintiff; nor will the fact that there has been an express promise to indemnify him if he will publish the libel in any may improve his position, for such a promise is void, the consideration for it being illegal. A printer cannot maintain an action for his charges for printing a libel; and if he agrees to print a book for a certain price, and finds in the course of his work that the book contains libellous matter, he may refuse to proceed, and can sue for that part of the work which is not libellous in an action for work and labour performed, and materials provided.”

“Where the libel has appeared in a newspaper, difficulty is often met with in attempting to ascertain the author of the libel, for an editor will not, as a rule, give this information, nor is he bound to do so. ‘When a man went to an editor to ask for the name of an anonymous correspondent, no blame attached to the editor for refusing to give the name. Indeed, an editor would be almost mad to do so. I should blame no editor for so refusing.’”--Baron Martin, cited in Fraser’s _Libel and Slander_.

The majority of the foregoing paragraphs have been taken from Mr. Fraser’s work, and, though they are submitted in a somewhat fragmentary state, their interest is of a sufficiently general character, perhaps, to warrant their inclusion here.

One of the most outrageous libels in recent years, was brought into court during the Hilary sittings, 1911, when, before the Lord Chief Justice and a special jury, Edward Frederick Mylius was criminally indicted for libelling his Majesty the King. The actual printing of the libel was carried out abroad, in the comparative safety offered by the French capital. Edward Hilton James was the person chiefly responsible for the offence. _Liberator_, a name one associates with Jabez Balfour, the assassination of a Russian Emperor and various other unsavoury events, was the title chosen for the organ in which the libel appeared. The _Liberator_ libel on the King was wholly unjustified from every conceivable standpoint. In the first place, had his Majesty chosen to go through forty ceremonies of the kind so falsely alleged, no one of them would have been legal, not even the first. The Royal Marriages Act, Geo. III.,[16] makes it illegal for any member of the Sovereign’s family to contract a binding marriage without first obtaining the consent of the Sovereign, or, failing that, without giving twelve months’ notice to the Privy Council. Marriage is a purely legal tie, and if it does not conform with the requirements of the law it must perforce fail. That is to say, there is no marriage where the law forbids it. Obviously, had his Majesty chosen to go through any ceremony of marriage without the sanction of the late Queen Victoria, or, without giving twelve months’ notice to the Privy Council, such ceremony would have been just as void as if it had never taken place. This is merely the way the law views the contingency. In actuality, the King never went through any form of marriage at all and the libel was a cruel and a wicked one.

To be a popular or celebrated figure at the present day is to be the target for every form of foul abuse, criminal concoctions and cruel lies. Whether a person’s life is blameless or blameworthy, he only has to reach a certain degree of public attention to be douched with the vile outpourings of a cesspool, or blinded by the volcanic lava of jealousy and spite. The individual who yearns for fame had better first well calculate his power to endure its concomitants! To the monarch, born to it, there is no choice. He must go ahead as best he can, sickened with humanity, with his own troublous lot, almost envious of the stagnant peace of obscurity, with its mediocre associations and perpetual monotony.

The hare-brained pseudo-revolutionary responsible for the gross writings in the Mylius case had the audacity to quote extracts from the American Declaration of Independence,[17] and other historic documents, to give the colour of respectability to his sewage rag. The present writer descends from officers who took part in the American War of Secession, the American War of 1812, and the American Civil War or the War of the Rebellion, but he can find no common ground between himself and the skulking anarchist who incited attacks on a harmless and worthy monarch, to wit, King George the Fifth.

Mylius, the criminal indicted for the offence, affirmed the truth of the libel in court, notwithstanding the evidence to the contrary of witnesses of the best type. The marriage registers from Malta, where Mylius stated the marriage of the King had taken place, were produced, and, it is needless to say, no trace of any such marriage was to be found. The twelve months’ imprisonment to which the prisoner was sentenced was said by the judge to be insufficient. Indeed, it is an anomaly of the law that such an inadequate punishment should be the maximum assignable for the offence.[18]

After the sentence had been pronounced, the Attorney-General made the following statement: “I hold in my hands at this moment a document, under the hand of his Majesty the King, from which, with your lordship’s permission, I will read. I am authorised by his Majesty to state publicly that he was never married, except to the Queen, and that he never went through any ceremony of marriage, except with the Queen. And, further, that his Majesty would have attended to give evidence to this effect had he not received advice from the Law Officers of the Crown that it would be unconstitutional for him to do so. That statement, my lord, is signed by the King himself.”

The Mylius-James concoction was of a particularly vicious character. Had it been true, it would have left in the minds of ignorant people the impression that his Majesty’s children were the issue of a morally bigamous alliance. There is too much sedition-mongering already, to fill the minds of the benighted classes with fresh forms of doubt. Certainly, the King has enough to bear in the grave political unrest of the period, without being besmirched and libelled in his private life.

As a last word on the subject of the King’s case, it is pleasing to note that no member of the London Bar appeared for the defence of the accused.

There is at least one anomaly in the law of libel and slander which justifies the existence of this chapter. The publicity necessary to vindicate oneself under present conditions acts as a deterrent to many people in the prosecution of a libeller. The system of hearing cases _in camera_ would be better adapted to the feelings of libelled persons--those who hesitate to subject themselves to the bright blaze of newspaper details--than the existing open court trial. There is no reason why the scoundrel who libels a person should have the right to fling fresh insults and fictitious statements at his victim in the free atmosphere of a court of law--with the full knowledge that the case will be reported in the press. The greater the lie the greater the shrinking--from further publicity on the part of the victim. As matters stand, a man can be prosecuted criminally for a libel, or he can be sued for damages, or both. The form of a criminal prosecution most recommends itself to the thinking mind, for the actual punishment of the guilty must always be more satisfactory than the mere recovery of a sum of money.[19]

Abuse, written or spoken, must not be confused with an actionable tort. One is comparatively safe in describing a man in writing as a “dirty scoundrel,” whereas it might be otherwise were one to allude to him as a “vicious thief.” Some sense of proportion and an exact knowledge of the use and meaning of words are useful possessions to the person of violent temperament!

In Roman law, truth might be pleaded in justification of libel or slander, at least in those cases where the public was interested in the exposure. By the _Lex Cornelia_, it was made optional for the injured person to proceed against the offender either civilly or criminally. Truth is an answer to a civil action under the English law, but truth, coupled with evidence of public expediency, must be taken as essential in defence of criminal proceedings. Where, however, a man, actuated by good faith in the pursuit of his own interests, libels another man, he has a perfectly good defence. A certain individual who believed himself to have been defrauded by the machinations of another, in connection with a will, wrote to a third person for information. References were made to the alleged fraud in the letter, which was published in the press as part of the evidence at a coroner’s inquest. These facts come within the meaning of the immunity above referred to.

It is possible, in this country, to libel the dead, _i.e._, where the libel is calculated to cause pain to surviving relatives or descendants. This is almost an anomaly, but it is a most proper one, nevertheless! The maxim, “_actio personalis moritur cum persona_,” applies, too, for no right of _action_ lies; the right to bring criminal proceedings, is that intended by the reference.

FOOTNOTES

[13] This libel action was based upon the posting by the defendant of two large boards (on his premises at the corner of Oxford Street and Holles Street) bearing respectively the words, “16 and 17, Holles Street, Lord Howard de Walden’s Monument of Iniquity,” and, “In the Holles Street Drama, the young Baron is discovered behind the curtain, pulling the wires for the imprisonment of his old tenant.” The defendant admitted that he had nothing against the plaintiff personally; he said that he wished to draw attention to his grievance against the managers of the Howard de Walden Estate. In the result, judgment was entered for the plaintiff.

[14] Dr. W. Blake Odgers, K.C., is the author of the standard work on libel and slander.

[15] An insult to counsel may be punished as a contempt.

[16] See Appendix C.

[17] It may be noted that five of the signatories of the Declaration of Independence were Middle Temple barristers: Thomas McKean, Edward Rutledge, Thomas Lynch, Thomas Heyward and Arthur Midleton. With the exception of the first-named, all of these gentlemen were Representatives of South Carolina. Thomas McKean, by the way, wrote the Constitution of Delaware in a night, while Edward Rutledge drafted the greater part of the Constitution of South Carolina. The latter was chairman of the Committee of Five who drafted the first Constitution of the United States.

[18] “Edward Frederic Mylius is fortunate, living as he does in times when justice is tempered by extreme leniency. In former times the Kings of England had no lack of power in dealing with those who slandered Royalty. To cite only one instance, King Henry the First had been lampooned by a former friend, Luke de Barre, a troubadour knight. The unfortunate man was condemned to lose his eyes on the scaffold by the hands of the public executioner.

“Many intercessions were made in his favour, but the King replied:--‘No, for this man, being a wit, a bard, and a minstrel forsooth, hath composed many ribald songs against me and sung them to raise the horse-laugh of mine enemies. Now it hath pleased God to deliver him into my hands, punished he shall be to deter others from the like petulance.’ It is not quite clear whether the sentence was carried out as arranged. Some chroniclers assert that De Barre’s eyes were in fact put out, and that he died of the torture, while others say that he cheated the executioner by dashing out his brains against the stone wall of his prison. In either case the incident shows that to libel Royalty in the twelfth century was a perilous venture.”

[19] “Our legal system is apt to give wholly disproportionate importance to a large class of libel and slander actions intrinsically of small account. We provide first-rate machinery for the determination of second-rate or even trumpery questions; disputes not much above the level of those which a County Court judge settles once for all in a rough and ready manner in ten minutes or a quarter of an hour. It is true that there are libels of a cruel and malignant character, more mischievous than most crimes; calumnies industriously circulated as to the private lives of innocent men and women; fictions or distortions of facts for which no punishment is excessive. For such libels the criminal law is the proper remedy. But for a large mass of libels and slanders which engage the time of High Court judges and special juries the legal machinery provided, criminal or civil, is altogether out of proportion to their importance.”--_The Times._

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