Concept of Defamation

1.1 Protection of Reputation and Defamation

The right of every person during life to the unimpaired possession of a reputation and a good
name is recognized y the law. Reputation depends on opinion, which is affected by
communication of thought and information from one person to another. So a person who
communicates to the mind of another matter which is untrue and likely in the course of
things substantially to disparage a third person is, on the face of it, guilty of a legal wrong for
which the remedy is an action in tort for defamation.

Defamation is therefore the tort which protects reputation and the courts have, on more than
one occasion, stressed that defamation is the only appropriate action for the vindication of
reputation.

Recent developments-

Two recent developments are worthy of immediate note. In Joyce v. Sengupta', the plaintiff
brought an action of malicious falsehood in respect of newspaper reports that she had stolen
personal letters from her employer, the Princess Royal. Although she would have had an
action for libel, she chose to bring her action for malicious falsehood because legal aid is
permitted for the latter tort and not for defamation. The Court of Appeal refused to strike out
her claim, ruling that it was legitimate for her to sue in malicious falsehood even where she
would have had an action for libel, and affirming that, where a plaintiff has more than one
cause of action available to him or her, there is no rule which compels one rather than the
other to be chosen. The defendants failed in their attempts to establish that they would be
deprivcd of an important constitution.al right by being unable to obtain trial by jury and also
that the plaintitfi s action for malicious falsehood amounted to an abuse of process, involving
‘economic lunacy’, since the recovered would be small and the cost to public funds, through
the provision of legal aid, considerable.

The conflict between the values of freedom of speech on the one hand and the protection of a
person's right to his reputation on the other has been addressed in recent cases by the English
Courts, which have acknowledged the influence and importance ct Article 10 of European
Convention on Human Rights to which the United Kingdom is a signatory, although it has

[1992] EWCA Civ 9

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not been incorporated into English law. Article 10 of European Convention on Human
Rights to which the United Kingdom is a signatory, although it has been incorporated into
English law. Article 10 of the Convention provides for freedom of speech subject only to
restrictions which are ‘necessary’. So in Derbyshire County Council v. Times Newspaper,
the Court of Appeal referred to Article 10 in reaching their decision that a local authority
cannot sue in defamation in relation to its governing reputation, since to allow such an action
would be t o permit a fetter on freedom of speech, contrary to Article 10.

Defamation: Definition and elements

Defamation is the publication of a statement v›hich rejects on a person's reputation and

tends to lower him in the estimation of right-thinking members of society generally or tends
to make them shun or avoid him.

For historical reasons defamation takes the form of two separate torts, libel and slander, the
former being generally more favourable to the plaintiff because it is actionable per se and
injury to reputation will be will be presumed. However, whether the case is one of libel or
slander the following elements must be proved by the plaintiff.

a. The statement must be defamatory.

b. It must refer to the plaintiff i.e. identify him
c. It must be published, i.e. communicated to atleast one person other than the plaintiff

Distinction between Libel and Slander

Once upon a time the fundamental distinction was between written (including printed)
words, which were libel, and spoken words, which were slander. Nowadays the general view
is that the test of libel is whether the publication is in a ‘permanent’ form, other cases being
slander. However, by the statute certain forms of publication are made libel even though they
are not necessarily very permanent at all. Examples of libel are a writing, printed material, or
other mark or sign exposed to view, or a picture, waxwork, statute or effigy. On the other
hand, defamation in the sign language of deaf and dumb, and mimicry and gesticu lation
generally (for example holding up an empty purse to indicate that the plaintiff has been
robbed by the defendant) would be slander, because the movements are more transient. But
some arbitrary lines have to be drawn: it is thought that chalk marks on a wall would be
libel even though
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they may be quickly washed away by the rain. Far more important in practise are the
statutory provisions whereby broadcasting both radio and television, and theatrical
performance are libel.

The court of Appeal in roussoupo/f v. Metro-Goldw yn-Mayer Pictures Ltd. has no doubt
that the showing of defamatory matter embodied in a film with a soundtrack was libel:

“There can be no doubt that, so far as the photographic part of the exhibition is
concerned, that is a permanent matter to be seen by the eye, and is the proper subject
of an action for libel, if defamatory. I regard the speech which is synchronized with
the photographic reproduction and forms part of one complex, common exhibition as
an ancillary circumstance, part of the surroundings explaining that which is to be
seen.

That, of course, does not deal with the position where there is nothing defamatory in the
visual part of the film, but it is submitted that that case too, should be libel: the distinction
between libel and slander is anachronistic and fine distinctions should not be encouraged.
Other borderline cases which should also, it is submitted, be libel are the playing of a video
tape, or a record or audio tape, or the calling up of defamatory material on a computer screen
or its distribution on the INTERNET.

Obviously if an oral utterance is communicated to a person it is a slander which is published

and if a written statement is shown it is libel. But an oral statement is shown it is libel. But an
oral statement by A may be written statement down by B and shown by B to C. In that cases
B publishes a libel. No doubt A's original uttering of the words to B was slander, but the
communication to C is not by word of mouth. Conversely, if a A writes to B something
defamatory of X and B reads it aloud to c, that ought logically to be slander, but the balance
of authority (though there is a little reasoning to support it ) is the other way. If I dictate a
defamatory letter to a typist I pubi ish a slander in doing so. But when the typist reads or
hands it back to me it seems that there is no publication at all by him and although I can be
l iable for a publication by my agent I can hardly publish it to myself.

The importance of the distinction

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There are two important distinctions between liber and slander.

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A libel which tends to provoke a breach of the peace is a crime. Slander is only tortuous.

Libel is actionable per se (without proof of actual damage), slander is actionable only on
proof of actual damage expect in the following circumstances-

1. Imputation of a criminal offence — The offence must be punishable with

imprisionment but a specific offence need to be mentioned. ‘I know enough to put
you in goal’, is therefore a slander actionable per se.
2. Imputation of a disease — There is some doubt about the scope of this rule but it is
clear that the al!egation must be that the plaintiff is currently suffering from a
contagious or infectious disease. Venereal disease, leprosy and plague are within the
rule.
3. Imputation o]’unchastity or adoffeiy to any woman or girl — This is a statutory rule.
The Slander of Women Act 1891 s 1 states: ‘Words spoken and published which
impute unchastity or adultery to any w'omen or girl shall not require special damage
to render them actionable.’ An imputation of lesbianism is within the section.
4. Imputation of unfitness or incompetence — This exception related to allegations of
unfitness, incompetence or dishonesty in any profession, trade, calling or business
held or carried on by the plaintiff.

Elements of Defamation

As to bring a case for defamation the plaintiff should prove above mentioned factors,
which are discussed in detail hereby-

1 . What is a defamatory statement

As we shall see, truth is normally a complete defence to an action for defamation, but
this is separate from the question of whether the statement is defamatory, which looks
solely to the effect of statement upon the plaintiff s reputation. Thus the statement, ‘P is a
thief is a defamatory of P even if D can sh.ow beyond any doubt that P is a thief. But if
he can show that, it is not actionable.

There are three alternative ways in which material may count as defamatory. This first is
when tends to ‘lower the plaintiff in the estimation of right-thinking people
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generally’. The second is that the statement holds the plaintiff up to ridicule, hatred
and contempt’. The third is that the material tends to cause people to ‘shun or avoid’ the
plaintiff. Material is defamatory if it meets any of the tests, even though it may not meet
the others. For example, to say of someone that he is bankrupt is probably to lower him in
the estimation of right thinking people generally, but not necessarily to cause people to
hold him up to ridicule hatred or contempt or to shun or avoid him. To say of people that
they have a communicable disease may cause others to shun and avoid them, but it may
not lower them in anyone's estimation or holds them up for ridicule, hatred or contempt.
Nevertheless both these statements are defamatory.

The context within which words appear is relevant. If the plaintiff quotes selectively, the
defendant may fill in the gaps to show that the words w'ould not; in context have had a
defamatory meaning. Also relevant is the words cumulative effect as opposed to just their
meaning phrase by phrase.

The words must tend to give rise to tne feelings mentioned above though there is no
necessity that they actually do so: if you defame me to my best friend who does not
believe a word of it I hav• still been defamed. But whom should they produce this
tendency? The answer is the reasonable man, here transformed into the reasonable reader
or viewer or listener. This rules out on the one hand those persons who are so cynical that
they would think none the worse of a person whatever was imputed to him, and on the
other hand those who are so censorious as to regard even trivial accusations( if they were
true) as lowering a person's reputation. He is the ‘right thinking member of the society
generally’.

If the words would tend only to disparage the plaintiff in the eyes of a particular class or
group of persons that is not enough, they must have that effect in the eyes of persons
generally’. In practise this is not quite so restrictive as it seems because in many cases
where a plaintiff is charged with offending against the tenets of a group to which he
belongs there may be an implication of disloyalty or hypocrisy, which is actionable in its
own right, even though ordinary people are indifferent to the direct charge against him.
To say of a person that he takes alcohol in moderation is not defamatory; but to say it of
a temperance crusader may very well be.

It is clearly established that what is important is what the words may reasonably be taken
as meaning, not what the defendant intended by them, though the defendant's intention
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may be relevant on damages and on statutory offer of amends defence. The common law
position is illustrated by Cassidy v. Daily Mirror Newspapers Ltd. The defendants
published in their newspaper a photograph of one C and Miss X together with the words:
“Mr. C the race-horse owner, and Miss X, whose engagement has been announced.” Mrs.
C was, and was known among her acquaintances, as the wife of C, although she and C
were not living together. The information on which the defendants based their statement
was derived from C alone, and they had made no attempt to verify it from any other
source. Mrs. C sued them for libel. A majority of the Court of Appeal held that the
publication might convey to reasonable persons that the plaintiff was not C's husband,
that she had been cohabited with him and that this impugned her character.

Motive immaterial

Except where the occasion is one of qualified privilege or one where ‘fair comment’ is
available, the motive o* the defendant is immaterial in determining his liability. “A man
may be the publisher of a libel without a particle of malice or improper motive.” If a
defendant has published —

“where he knew, or ought to have known, was calculated to injure the plaintiff,
he must...be responsible j"or the consequences, though his object mfght have
been to injure another person then the plaintiff, or though he may have written in
levily only... No one can cast about firebrands and decith and escape from being
responsible by saying that he was in sport.”

“He cannot himself by showing that he is intended in his own breast not to
defame, or that he intended not to defame the plaintiff; iJ‘in fâct he J.id both.”

“Liability for libel does not Jepend on the intention of the defamer. but on the
fact of defamation. ”

If, therefore the defamatory matter would be responsibly be understood by members of

the public who knew the plaintiff to refer to him, the defendant is liable, even though he
may prove that the words, when written, were not and could not have been intended to
apply to the plaintiff, and indeed, that he was not awarc and had no reason to be aware
of the plaintiff s existence. It is for the publisher of the statement so to describe the
person
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he intends to refer to that no reasonable person would think the statement applied to
anybody else.

New Media- Defamation on the internet

The law of defamation has to adapt itself everything the technology of communication
improves. The issue again came in limelight as we move into the era oflnternet.

The internet is a network of computers communicating via a mixture of ordinary

telephone line and dedicated data lines.

Thousands of individuals in all parts of the world though the internet flows information
of almost every kind. It is also a mail system, with flows information of almost every
kind. It is also mail system, with thousands of electronic mail m•ssages going from
person to person every hour. The internet or some its more or less associated commercial
information services also provide electronic bulletin boards and opportunities for general
discussion (by electronic mail) of virtually any subject under the sun.

There is not one kind of communication on the internet but many. There is one -to-one
communication, similar to private letter. E-mail is usually supposed to be confidential,
but, like ordinary mail can be intercepted or stolen. There is also one -to-many
communication, equivalent to notice boards but with potentially enormous readerships.
And there is many-to-many communication, the electronic equivalents of newspapers
and newsletters. Sometimes the one-to —many and many-to-many communications are
edited or ‘moderated’ by people other than their authors, but much of the time they are
not.

The internet also allows the republication and the forwarding of messages at an
astonishing rate, because people are able to pass on instantly to others the information
that comes to them.

Clearly, it is possible to defame someone electronically. The e-mail message or posting

to an eclectic bulletin board is just another form or written communication. It is not on
paper (until someone decides to print out, which may never happen) but it is still in
permr.nent form stored on the hard disks of various computers. In the Australian case,
Rindos v. Hardwick, the defendant posted a message to an electronic bulletin board of
some 23,000 users. The message accused the plaintiff, a fellow anthropologist, of

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Paedophilia and of advancing his academic career by bullying others rather than by
proper anthropological research. This outrageous libel produced a legal action in which
liability was not in dispute, but Ipp I took the opportunity to confirm that there was no
problem in principle with libel actions for statements made in electronic form.

The difficult problem in electronic defamation, however, (apart from the potentially
mystifying consequences of multiple litigation in practically every country of the world)
is the position of the various people responsible for transmitting or storing defamatory
letters or even defamatory postcards that have been read by post office workers and so,
presumably, e-mail providers are not liable for merely transmitting electronic mail. But
what about the one-to-many and many-to-many communications? The culture of the
internet is that those who organize and maintain bulletin boards, newsgroups and
conferences intervene as little as possible in what can be written and read, and in
practice, although such people can ki11 messages if they have to, once a message gets
out into cyberspace, there is very I ittle anyone can do to stop those who have received
from sending it on and on.

Nevertheless the important legal question is whether defendant organisers of bulletin

boards will be able to claim the benefit of the defence of innocent dissemination. In the
US, operating under rules simiiar to those in the Restatement, the United States District
Court for the Southern District New York decided in Cubby v. CompuServe, that the
publisher of a bulletin board the contents of which it had no opportunity to review and
for which others took *ull responsibility, was in a position between that of a secondary
publisher and a common carrier and should not count as having published the
defamatory statement unless it knoew or had reason to know in advance that the material
would be defamatory.

But there are two points to make about Cuhhy. First, it did not discuss the possibility
that although the provider of a bulletin board may not be liable for the instantaneous
postings of defamatory messages, there remains the question of duty to remove the
defamatory messages from the bulletin board in the same way as there is a duty under
Byrne v. Deane, to remove defamatory messages fi om physical notice boards under
one's control. And secondly, under the English rules of the defence of innocent
dissemination as they survived Goldsmith v. Spurring, the burden of proof is on the
defendant to show that it acted reasonably in not finding out about the messages before

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they were posted.

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Role of Judges and Jurv in trial for defamatory (UK)

Defamation id one of the few civil law actions in which jury trial is still a common
event. As a result, much of the law consists of what judges should say to juries and what
tasks the judge has opposed the jury. In deciding whether the words were capable of a
defamatory meaning, and then the jury decides whether they really were defamatory.

The position is further complicated by the ruling in Lewis v. Daily Telegraph, that if the
words are capable of bearing several meanings, the judge must rule on whether each
meaning is capable of being defamatory, and only the defamatory meanings are put to
the jury. The jury then has to decide

(a) Whether the meaning of the words was one of the meanings ruled capable of being
defamatory , and
(b)Whether that meaning was indeed defamatory.

Nature of DefamatorY Statement

A statement might be prima facie defamatory or it might be defamatory in the sense of

’Innuendo ’. Let us discuss both the.se prohibitions.

It is clear then that no statement is necessarily and in all circumstances defamatory.

There is no charge or imputation, however serious on the face of it, which may not be
explained away by evidence that in the special circumstar:ces of the case it was not made
or understand in a defamatory sense. It may be shown to have been made in jest, or by
way of irony, or in some metaphorical or secondary innocent sense, and that it was or
ought to have been understood in that sense by those as to whom it was made.
Conversely, no statement is unnecessarily and in all circumstances innocent. An
allegation which on the face of it contains no imputation whatever against the plaintiff
may be proved from the circumstances to have contained a latent and secondary
defamatory sense. So the plaintiff must bring evidence to establish slang or cant meaning
which he attaches to an apparently innocent word such as “pansy”. Although, no
statements are necessarily defamatory or necessarily innocent, yet all statem ents are
divisible into two classes, according as they are

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(l)Prima facie defamatory, or
(2)Prima facie innocent
1. Statements prima facie defamatory

A statement is prima facie defamatory when its natural, obvious and primary sense is
defamatory: such a statement is actionable unless its defamatory significance is
successfully explained away; and the burden of such an explanation rests upon the
defendant.

The following case shows that the alleged statement should be judged as a whole to
ascertain whether its natural and ordinary meaning is defamatory.

Charleston and anr. v. News Group Newsoaaers Ltd. & a.nr.

LORD BRIDGE OF HARWICH

My Lords,

The appellants are the plaintiffs in an action claiming damages for libel against the
publishers and editor of the News of the World in respect of an article which appeared
in that newspaper on 15 March 1992.

The plaintiffs are an actor and actress who played the parts of Harold and Madge
Bishop, a respectable married couple, in the popular Australian television serial
"Neighbours” and were thus well known to an English audience of millions. The article
complained of appears with a headline across most of the page in capital letters three
quarters of an inch high which reads: ”STREWTH! WHAT'S HAROLD UP TO
WITH OUR iHADGE?"
Immediately beneath this is a large photograph of a man and a woman nearly naked.
The woman is leaning forward over some piece of furniture and the man is standing
behind her apparently engaging in an act of intercourse or sodomy with her.
Superimposed over the lower part of their bodies is an outline map of Australia bearing
the words "CENSORED DOWN UNDER."To the right of this is another smaller
photograph of a woman wearing a tight-fitting blouse or jacket with holes cut to expose
her bare breasts. The face of the man in the large photograph is the male plaintiffs and
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the face of the woman in both photographs is the female plaintiffs. Below the
photographs is another

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smaller, but still prominent, headline which reads: "Porn Shocked for Neighbours stars".
The captions under the photographs are in small print and read respectively: "SOAP
STUDS: Harold and Madge's faces are added to porn actors' bodies in a scene from the
game." and "RAMSAY RAVE: 'Madge' in kinky leather gear." Ramsay Street is where
the action of"Neighbours" is set.

The text of the article which follows makes it clear that the photographs have been
produced by the makers of a pornographic computer game by superimposing the faces of
the plaintiffs without their knowledge or consent on the bodies of others. The opening
paragraphs of the article read:

"What would the Neighbours say . . straight laced Harold Bishop starrinp• in a bondage
session with screen wife Madge...The famous faces from the TV soap are the unwitting
stars of as or did computer game that is available to their child fans....The game
superimposes stars' heads on near-naked bodies of real porn models. The stars knew
nothing about it."

Beside this text are inset two small photographs of the plaintiffs with the caption:
"VICTIMS: Ian and Anne." The remainder of the article castigates the makers of the
"sordid computer game" in a tone o'f self righteous indignation which contrasts oddly
with the prominence given to the main photograph.

The plaintiffs must have found this publication ‹ieeply offensive and insulting. Many
people will not only deplore this kind of gutter journalism but will think that the law
ought to give some redress to the plaintiffs against the publication of such degrading
faked photographs irrespective of what the accompanying text may have said. I have
considerable sympathy with this point of view.

However. your Lordships are not concerned to pronounce on any question of journalistic
ethics nor to consider whether the publication of the photographs by itself constituted
some novel tort. The single question of law to which the appeal gives rise is whether the
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plaintiffs have any remedy in the tort of defamation on the basis of their pleaded claim,
and this in turn narrows down to the question whether a claim in defamation in respect
of a publication which, it is conceded, is not defamatory if considered as a whole, may
nevertheless succeed on the ground that some readers will have read part only of the
published matter and that this part, considered in isolation, is capable of bearing a
defamatory meaning.

The plaintiffs' statement of claim alleges that the publication conveyed to the reader a
number of defamatory meanings. The basis on wt:ich all these alleged meanings rest is
that the reader would have drawn the inference that the plaintiffs had been willing
participants in the production of the photographs, either by posing for them personally or
by agreeing that their faces should be superimposed on the bodies of others. But it is
conceded on the plaintiffs' behalf, and is indeed obvious, that no reader could possibly
have drawn any such inference if he had read beyond the first paragraph of the text.
Thus the essential basis on which Mr. Craig's argument in support of the appeal rests is
that, in appropriate circumstances, it is possible and legitimate to identify a particular
group of readei s who read only part of a publication which conveys to them a meaning
injurious to the reputation of a plaintiff and that in principle the plaintiff should be
entitled to damages for the consequent injury he suffers in the estimation of this group.

It is well settled, as Mr. Craig accepts, that, save in the case of a legal innuendo
dependent on extrinsic facts known to certain readers, no evidence i,s admissible as to
the sense in which readers understood an all•gedly defamatory publication. No legal
innuendo is here alleged. But here, so Mr. Craig's argument runs, it goes without saying
and no evidence is required to establish that, out of the many millions constituting the
readership of a mass circulation newspaper like the News of the World, a significant
proportion, when they saw the page of which the plaintiffs complain, would have done
no more than to have read the headlines and looked at the photographs. It will be
convenient to refer to this group as the "limited readers". The argument before your
Lordships was substantially confined to the effect of the publication on the minds of the
limited readers. They would, Mr. Craig submits, have drawn an inference defamatory of
the plaintiffs as actors willing to participate in pornographic films and it should be left to
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a jury to estimate the size of the group constituted by the limited readers and to award
damages accordingly for the injury which the plaintiffs' reputation must have suffered in
the estimation of this group.

The first formidable obstacle which Mr. Craig's argument encounters is a long and
unbroken line of authority the effect of which is accurately summarised in Duncan &
Neili on Defamation, 2nd ed. (1983), p. l3,para. 4.11 as follows:

"In order to determine the natural and ordinary meaning of the words of which the
plaintiff complains it is necessary to take into account the context in which the words
were used and the mode of publication. Thus a plaintiff cannot select an isolated passage
in an article and complain of that alone if other parts of the article throw a different light
on that passage."

The locus classicus is a passage from the judgment of Alderson B. in Chalmers v. Payne
(1835) 2 C.M.& R.156, 159, who said:

"But the question here is, whether the riiatter be slanderous or not, which is a question
for the jury; who are to take the whole together, and say whether the result of the whole
is calculated to injure the plaintiffs character. In one part of this publication, something
disreputable to the plaintiff is stated, but that is removed by the conclusion; the bane and
antidote must be taken together."

This passage has been so often quoted that it has become almost conventional jargon
among libel lawyers to speak of the bane and the antidote. It is often a debatable
question which the jury must resolve whether the antidote is effective to neutralise the
bane and in determining this question the jury may certainly consider the mode of
publication and the relative prominence given to different parts of it. I can well envisage
also that questions might arise in some circumstances as to whether different items of
published material relating to the same subject matter were sufficiently closely
connected as to be regarded as a single publication. But no such questions arise in
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the instant case. There is no

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dispute that the headlines, photographs and article relating to these plaintiffs constituted
a single publication nor that the antidote in the article was sufficient to neutralise any
bane in the headlines and photographs. Thus it is essential to the success of Mr. Craig's
argument that he establish the legitimacy in the law of libel of severance to permit a
plaintiff to rely on a defamatory meaning conveyed only to the category of limited
readers.

Your Lordships were very properly referred to the many authorities in which the
principle of Chalmers v. Payne has been affirmed and applied. But it is unnecessary to
go through them, since Mr. Craig accepts that these authorities, so far as they go, are
unanimously against his proposition and that he is unable to rely on any other authority
in support of the principle of severance which he now advances.

The theme of Mr. Craigs argument runs on the following lines. All the earlier
authorities, he submits, are explicable on the basis that the allegedly defamatory matter
with which they were concerned was located somewhere in a document in which there
was no likelihood that it would be read in isolation. In such a situation it is natural and
proper to look for the meaning conveyed to the reader by considering the publication as
a whole. The techniques of modern tabloid journalism, however, confront the courts
with a novel situation with which the law has not hitherto had to grapple. It is plain that
the eye- catching headline and the eye-catching photograph will first attract the reader's
attention, precisely as they were intended to do, and equally plain that a significant
number of readers will not trouble to read any further. This phenomenon must be well
known to newspaper editors and publishers, who cannot, therefore, complain if they are
held liable in damages for any libel thus published to the category of limited readers.

At first blush this argument has considerable attractions, but I believe that it falls foul of
two principles which are basic to the law of libel. The first is that, where no legal
innuendo is al[eged to arise from extrinsic circumstances known to some readers, the
"natural and ordinary meaning" to be ascribed to the words of an allegedly defamatory
publication is the meaning, including any inferential meaning, which the words would
convey to the mind of the ordinary, reasonable, fair-minded reader. This proposition is

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too well established to require citation of authority. The second principle, which is
perhaps a corollary of the first, is that, although a combination of words may in fact
convey different meanings to the minds of different readers, the jury in a libel action,
applying the criterion which the first principle dictates, is required to determine the
single meaning which the publication conveyed to the notional reasonable reader and to
base their verdict and any award of damages on the assumption that this was the one
sense in which all readers would have understood it. The origins and the implications of
this second principle are the subject of a characteristically penetrating analysis in the
judgment of Dipiock L.J. in Slim v. Daily Telegraph Ltd [1968] 2Q.B.157, at pp. 171 -
174, from which it will, I think, be sufficient to cite the following passages:

”Everyone outside a court of law recognises that words are imprecise instruments for
communicating the thoughts of one man to another. The same words may be understood
by one man in a different meaning from that in which they are understood by another
and both meanings may be different from that which the author of the words intended to
convey. But the notion that the same n'ords should bear different mealiings tO different
men and that more than one meaning should be 'right' conflicts with the whole training
of a lawyer. W'ords are the tools of his trade. He uses them to define legal rights and
duties. They do not achieve that purpose unless there can be attributed to them a single
meaning as the 'right' meaning. And so the argument between lawyers as to th• meaning
of words starts with the unexpressed major premise that any particular combination of
words has one meaning which is not necessarily the same as that intended by him who
published them or understood by any of those who read them but is capable of
ascertainment as being the 'right' meaning by the adjudicator to whom the law confides
the responsibility of determining it. ...

"Where, as in the present case, words are published to the millions of readers of a
popular newspaper, the chances are that if the words are reasonably capable of being
understood as bearing more than one meaning, some readers will have understood them
as bearing one of those meanings and some will have understood them as bearing others
of those meanings. But none of this matters. What does matter is what the adjudicator at
the trial thinks is the one and only meaning that the readers as reasonable men
should have collectively understood the words to bear. That is 'the natural and ordinary
meaning' of words in an action for libel....

16
"Juries, in theory, must be unanimous upon every issue on which they have to
adjudicate; and since the damages that they award must depend upon the defamatory
meaning that they attribute to the words, they must all agree upon a single meaning as
being the 'right' meaning. And so the unexpressed major premise, that any particular
combination of words can bear but a single 'natural and ordinary meaning' which is
'right,' survived the transfer from judge to jury of the function of adjudicating upon the
meaning of words in civil actions for libel."

lt is precisely the application of the principle so clearly expounded in thèse passages

whiCh, ÎiJ £t libel action where no legal innuendo is alleged, prevents either side from
calling witnesses to say what they understood the allegedly defamatory publicaiion to
mean. But it would surely be even more destructive of the principle that a publication
has "the one and only meaning which the readers as reasonable men .should have
collectively understood the words to bear" to allow the plaintiff, without evidence, to
invite the jury to infer that different groups of readers read different parts of the entire
publication and for that reason understood it to mean different things, some defamatory,
some not.

Whether the text of a newspaper article will, in any particular case, be sufficient to
neutralise the defamatory implication of a prominent headline will sometimes be a
nicely balanced question for the jury to decide and will depend not only on the nature of
the libel which the headline conveys and the language of the text which is relied on to
neutralise it but also on the manner in which the whole of the relevant material is set out
and presented. But the proposition that the prominent headline, or as here the headlines
plus photographs, may found a claim in libel in isolation from its related text, because
some readers only read headlin.es, is to my mind quite unacceptable in the light of the
principles discussed above.

I have no doubt that Mr. Craig is right in his assertion that many News of the World
readers who saw the offending publication would have looked at the headlines and
photographs and nothing more. But if these readers, without taking the trouble to
discover what the article was all about, carried away the impression that two well known
actors in legitimate television were also involved in making pornographic films, they
could hardly be described as ordinary, reasonable, fair-minded readers.
17
I would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords, Newspapers get thicker and thicker. The News of the World published on 15
March 1992 contained 64 pages. Everybody reads selectively, scanning the headlines
and turning the pages. One reader, whose interest has been quickened by an eye-catching
headline or picture, will pause and read an article. Another reader, with different
interests or less tun•, will read the headline and pass on, leaving the article unread. What
if a headline, taken alone or with an attached picture, is defamatory, but the text of the
article removes the defamatory imputation? That is the question of law raised by this
appeal.

At first sight one would expect the law to recognise that som.e newspaper readers will
have seen only the banner headline and glanced at the picture. They will not have read
the text of the accompanying article. In the minds of these readers, the reputation of the
person who is the subject of the defamatory headline and picture will have suffered. He
has been defamed to these readers. The newspaper could have no cause for complaint if
it were held liable accordingly. It has chosen, for its own purposes, to produce a headline
which is defamatory. It cannot be heard to say that the article must be read as a whole
when it knows that not all readers will read the whole article.

To anyone unversed in the law of defamation that, I venture to think, would appear to be
the common sense of the matter. Long ago, however, the law of defamation headed
firmly in a different direction. The law adopts a single standard for determining whether
a newspaper article is defamatory: the ordinary reader of that newspaper. l leave aside
cases where some readers may have special knowledge of facts which would cause them
to give the words a different meaning.

In principle this is a crude yardstick, because readers of mass circulation newspapers

vary enormously in the w-uy they read articles and the way they interpret what they
18
read. It is, indeed, in this very consideration that the law finds justification for its
single

18
standard. The consequence is that, in the case of some publications, there may be many
readers who understand in a defamatory sense words which, by the single standard of the
ordinary reader, were not defamatory. In respect of those readers a plaintiff has no
remedy. The converse is equally true. So a newspaper may find itself paying damages
for libel assessed by reference to a readership many of whose members did not read the
words in a defamatory sense.

I do not see how, consistently with this single standard, it is possible to carve the
readership of one article into different groups: those who will have read only the
headlines, and those who will have read further. The question, defamatory or no, must
always be answered by reference to the response of the ordinary reader to the
publication.

This is not to say that words in the text of an article will always be efficacious to cure a
defamatory headline. It all depends on the context, one element in which is the lay-out of
the article. Those who print defamatory headlines are playing with fire. The ordinary
reader might not be expected to notice curative words tucked away further down in the
article. The more so, if the words are on a continuation page to which a reader is
directed. The standard of the ordinary reader gives a jury adequate scope to return a
verdict meeting the justice of the cas•.

The present case is well on the other side of the borderline. The ordinary readcr could
not have failed to read the captions accompanying the pictures. These made clear that
the plaintiffs' faces had been superimposed on other actors' bodies. The plaintiffs had not
themselves been indulging in the activities shown in the pictures. The ordinary reader
would see at once that the headlines and pictures could not be taken at their face value.
And the reader's eye needed to travel no further than the "victims" caption to the smaller
photographs, and to the second sentence, at the top of the article, to find confirmation
that the plaintiffs were "unwitting" stars in the or did computer game.

Accordingly, when the ordinary reader put down the News of the World on 15 March
1992, he or shC wOtild have thought none the worse of the two actors who are well-
known for their roles in the "Neighbours" television serial. The ordinary reader might
have thought worse of the producers of the pornographic computer game, and of the
News of the World, but that is a different matter. In agreement with my noble and
learned friend, Lord Bridge of Harwich, I too would dismiss this appeal.
19
2. Statements prima facie innocent [INNUENDO]

When a statement is prima facie innocent, the plaintiff must expressly and explicitly set
forth in his pleadings the defamatory meaning which he attributes to it. That defamatory
meaning may not be the ordinary meanings. In the first case the plaintiff must, and in the
second case the plaintiff should, set out the meaning which he says the words bear. Such
an explanatory statement is called innuendo. It is not a true innuendo to repeat the
obvious meaning of defamatory words in other language, or in an embroidered or
exaggerated way. Otherwise an ingenious pleader could perplex the judge and jury
and harry the defendant, by ringing the changes on the same word, creating
numerous different causes of action, each requiring a separate verdict. A true innuendo
relies on a conjunction of the words used and some extrinsic fact or facts, which are
known to the person to whom the words are published at the date of publication. Thus
the statement “X is a good advertiser” is innocent in itself, but carries a libellous
innuendo if published to persons who know the extrinsic fact that X is an eminent
member of a profession whose rules forbid advertising.

Thus for example juxtaposition of material about the plaintiff with other material may
make an otherwise innocent material defamatory. The most famous instance is Monson
v. Tussauds Ltd. The defendants, who kept a waxwork exhibition, placed an effigy of
the plaintiff with a gun, in a room adjoining the “Cham ber or Hoi rors”. The plaintiff
had been tried for murder in Scotland and released on a verdict of “Not Proven” and a
representation of the scene of the alleged murder was displayed in the Chamber of
Horrors. The Court of Appeal considered that although in all the circumstances the case
was not suitable for the issue of an interlocutory injunction, the exhibition was capable
of being found by a jury to be defamatory.

The modern practice, expect in the very plainest cases, is to require the plaintiff to say in
his statement of claim what meaning he attributes to the statement in order that the
defendant may know what case he has to meet and the judge may know upon what
meanings he may have to rule.

So if it is stated that the plaintiff was seen entering n particular house which is a brothel,
but the nature of the house is not specified, the words are defamatory only in so far as it
is proved that they were published to persons who knew the character of the house. If
the
20
plaintiff fails to establish the supporting facts for the innuendo he may, of course, still
fall back on the ordinary meaning of the words if those are defamatory.

A striking example of innuendo being successfully pleaded can be found in Tolle y P. v.

J.S. Fry & Sons Ltd. in that case an amateur gold champion sued the defendants, a firm
of chocolate manufacturers, who had published an advertisement in the middle of which
“there appear a caricature of Mr. Tolley hitting one of his most vigorous drives, with a
carton of Fry's chocolate sticking prominently out of his pocket and comic candy
dancing with another carton on Fry's chocolate in his hand, and comparing in doggerel
verse the •xcellence of the drive with the excellence of the chocolate. Mr. Tolley was as
most people would be, much annoyed at this piece of offensive vulgarity, which reflects
very little credit on the good taste of those who control the advertising of Messrs Fry.
He does not Fry's chocolate, and his permission for the appearance of the cartoon had
not been asked.” The innuendo allowed ways in effect that he had consented to the use
of his portrait as an advertisement for regards and had prostituted his reputation as an
amateur golfer. The House of Lords held that there was evidence on which a jury would
be entitled to find the advertisement to be defamatory of the plaintiff, but ordered a new
trial on the issue of damages.

Cassidy’s case

When the relating to proof of innuendo is combined witii the rule that the test of
defamatory nature of a statement is objective and not subjective, it may well be asked
whether it is not a necessary conclusion that a person is responsible for a statement
which he believes to be innocent, but which is in fact defamatory by reason of facts
unknown to him but known to persons to whom he makes it. To this question the
majority of Coun of Appeal gave an affirmative answer in Cassidy v. Duily Mirror
Newspapers Ltd. The facts in this case are simple. A man named Cassidy, who also for
some reasons also called himself Corrigan and described himself as a General iri the
Mexican Army, was married to a lady who also called herself Cassidy or Mrs. Corrigan.
Her husband occasionally came and stayed with her at her flat, and her acquaintances
met him. Cassidy achieved some notoriety in racing circles and in indiscriiv inate
relations with women, and at a race meeting he posed, in company with a lady, to a
racing photographer, to whom he says he was engaged to marry the lady and the
photographer might announce it. The defendants accordingly published the photograph

21
with the following words underneath: “Mr. M. Corrigan, the racehorse owner, and Miss
‘X’, whose engagement has been announced.” The innuendo placed upon these words by
the plaintiff was that she was an immoral woman who had cohabited with Corrigan
without being married to him, and some female acquaintances of the plaintiff gave
evidence that they had formed a bad opinion of her on that ground as a result of the
publication. The jury found that the words did reasonably bear a defamatory meaning,
and awarded the plaintiff C500 damages. A majority of the Court of Appeal held that
their verdict could not be disturbed. Further, it has since been laid down that where
words are capable of being understood in a defamatory sense by persons whom special
facts are known, it is unnecessary to prove more than that there are people who knew
those special facts and so might reasonably understand the words in a defamatory sense.

B. Reference to Plaintiff

If the plaintiff is mentioned by name there is usually no difficulty, but he need not be
named, for the issue whether the statement may be understood by reasonable people as
referring to the plaintiff. He may for example be referred to by a nickname or by initials
or by his job or by reference to some allegorical or historical character or by a word
picture.

In Mrogan v. Odhams Press Ltd., a newspaper article alleged that a girl had been
kidnapped by a dog doping gang. At the relevant time the girl had been staying at the
plaintiffs flar and the plaintiff produced 6 witnesses who swore that they understood
from the article that he was connected with the gang. A majority of the House of Lords
held that these facts constituted sufficient material to leave to the jury. The test of
whether the words “refer to the plaintiff’ in this situation is whether a hypothetical,
sensible reader, having knowledge of the special circumstances, would believe that the
plaintiff was referred to”. In such a case, of course, it is essential that the plaintiff shows
that the material was published to persons who knew the special facts. Where, on the
other hand, the article identifies the plaintiff on its face, so that no true innuendo is
necessary, it seems that the plaintiff does not need to show that anyone who read it knew
him and therefore was actually put in mind of him. Provided there is evidence that the
words were published to otb.ers the question is whether ordinary, sensible readers,
knowing of the plaintiff, would be of opinion that the words referred to him (though
evidence that people actually did so many course inflate the damages).

22
We have seen that the question of whether a publication is defamatory must be
determined on the basis of the article itself and the surrounding circumstances and words
cannot become defamatory by virtue of later information or events. But where a
defamatory publication does not sufficiently identify the plaintiff, he may nevertheless
rely for identification purposes on a subsequent publication by another to which the
defendant draws attention. It has been said that were the law otherwise, it would be open
to a newspaper to publish a virulent libel without identify the person defamed but adding
a statement that the victim would be identified in a week's time.

As in the case of defamatory meaning, the ultimate question is not what the defendant
intended but what the words can reasonably be understood as conveying. Therefore the
defendant may be liable at common law even if he intended to write about a wholly
fictitious character, if a reasonable reader might think the plaintiff was referred to. In
Hulton & Co. v. Jones, H were newspaper proprietors and published a humorous
account of a motor festival at Dieppe in which imputations were cast on barrister named
Arteirus Jones, who was not a churchwarden, did not live at Peckham and had taken no
part in Dieppe motor festival. He sued H for libel and friends of his swore that they
believed the article referred to him. In affirming a verdict for the plaintiff, the House of
Lords held that there was evidence upon which the jury could have come to the
conclusion that reasonable people would believe that plaintiff was referred to and thai it
was immaterial that defendants did not intend to defame him. It logically follows front /-
fnffow v. Jones, that if D intends to refer to X, about whom the statement is true, and
reasonable people might take it as referring to P, then D has defamed P, and this was
accepted by the Court of Appeal in Newstead v. London Express, where a repon of the
conviction of “Harold Newstead, thirty year old Camberwell man” for bigamy was held
actionable by another Harold Newstead in Camberwell of about the same age.

Both the cases mentioned above are as follows:

E. Hulton & Co. v. Jones, 1908-10 All ER 29

The defendants published in the Sunday Chronicle an article by their Pans

correspondent describe a motor festival at Dieppe. It contained the following passages.
“Upon the terrace marcnes the world, attracted by motor races- a world immensely
pleased with itself and minded to draw a wealth of inspiration-and incidently or golden
cocktails from any scheme to speed the passing hour. .. Whistl there is Artem us Jones
23
with a woman

23
who is not his wife, who must be you know- the other things! Whispers a neighbour of
mine excitedly into her bosom friends ear. Really, is it not surprising how certain of our
fellow countrymen behave when they come abroad? Who would suppose, by his going
on, that he was a church warden at Peckham? No one indeed, would assume that Jones in
the atmosphere of London would take on so austere a job as the duties of a
Churchwarden. Here, in the atmosphere of Dreppe on the French side of Channel, he is
the life and soul of a gay little band that haunts the Casino and turns night into day,
besides betraying a most unholy delight in the society of female butterflies.

The plaintiff was a barrister on the Nrth Wales Circuit who was baptised as Thomas
Jones but on connrmation took, on the ground of its distinctiveness, the additional name
of Artemus. Until being called into the Bar in 1901 he had contributed signed articles to
the defendant's paper, but he accepted that the writer of the article and the editor of the
paper knew nothing of him and that they did not intend the article to refer to him.
Witnesses called by the plaintiff testified that they took the article to refer him.

The jury awarded 1.750 Pounds and damages and Channell J. entered judgement for the
plaintiff in that amount. The Defendant's appeal to the k“ourt of Appeal was dismissed
(Fletcher Moulton L.J. dissenting). The defendant further appealed to the House of
Lords and that appeal was also dismissed in unreserved judgement.

Lcrd Chancellor (Loreburn)—l think that this appeal must be dismissed. A question in
regard to the law of libel has been raised which does not seem to me to be entitled to the
support of your Lordships. Libel is a tortuous act. What does the tort consist in? It
consists in using language which others knowing the circumstances would reasonably
think to be defamatory of the person complaining of and injured by it. A p•rson charged
with libel cannot defend himself by showing that he intended in his own breast not to
defame, or that he intended not to defame the plaintiff. He has none the less imputed
something disgraceful, and has none the less injured the plaintiff. A man may publish a
libel in good faith believing it to be true, and it may be found by the jury that he acted in
good faith believing it to be true, and reasonably believing it to be true, but that in fact
the statement was false. Under those circumstances he has no defence to the action. It
was suggested tnat there was a m isdirection by the

24
Lord Atkinson—I concur with the judgment which has been delivered by the Lord
Chancellor, and I also concur substantially with the judgment delivered by Farwell, L.
J., in the Court of Appeal. I think that he has put the case upon its true ground, and I
should be quite willing to adopt in the main the conclusions at which he has arrived.

Lord Gorell—I also concur with the judgment which has been pronounced by the Lord
Chancellor. I also wish to express my concurrence with the observations which Lord
Atkinson has made upon the judgment of Farwell, L. J.

Lord Shaw—I concur in the observations which have been made by the Lord
Chancellor, but for my own part I should desire in terms to adopt certain language which
I will now read from the judgment of Lord Al verstone, C.J.—“The question, if it be
disputed whether the article is a libel upon the plaintiff, is a question of fact for the jury,
and in my judgment this question of fact involves not only whether the language used of
a person in its fair and ordinary meaning is libellous or defamatory, but whether the
person referred to in the libel would be understood by persons who knew him to be the
plaintiff.” Witfi regard to this whole matter I should put my propositions in a threefold
form, and, as I am not acquainted by training with a system of jurisprudence in which
criminal libel has any share, I desire my observations to be confined to the question of
civil responsibility. In the publication of matter of a libellous character—that is, matter
which would be libellous if applying to an actual person—the responsibility is as
follows In the first place, there is responsibility for the words used being taken to signify
that which readers would reasonably understand by them; in the second place, there is
responsibility also for the names used being taken to signify those whom the readers
would reasonably understand by those names; and in the third place, the same principle
is applicable to persons unnamed but sufficiently indicated by designation or
description.

Newstead v. London Express Newspaper Ltd. (1939) 4ALL ER 319

The plaintiff Harold Newstead, was a hair dresser at Camberwell. He was about 30
years of age and unmarried. The defendant published photograps of two women
25
with a

26
statement underneath that Harold Newstead, a 30 year old Camberwell man, had been
convicted of bigamy, the plaintiff contended that these statements were understood to
refer to him, though infact they refer to another man of the same name living in
Camberwell.

... it was contended that the evidence does not justify the jury in finding that reasonable
persons would have understood the words complained of to refer the plaintiff, as the
words were not capable of such a meaning, and also that, assuming that the words were
capable of a meaning defamatory of the plaintiff, the fact that they were true of another
person afforded a good defence.

Sir Wilfrid Greene, M.R.

If the words used, when read in the light of relevant circumstances, are understood by
reasonable persons to refer to the plaintiff then refer to him they do for all relevant
purposes. Their meaning cannot be affected by the recklessness or honesty of the writer.
I do not propose to refer to the authorities which establish their proposition except to
quote the words of Lord Loreburr., LC in Hulton (E) & co. v. Joanes

What does the tort consist in? It consists in using language which others knowing the
circumstances would reasonable think to be defamatory of the person complaining of
and. injured by f/.

In the case of libel, once it is held that the words are capable of referring to the plaintiff,
it is, ofcourse, for the jury to say whether or not they do so refer. Subject to this, the
principle is in truth an illustration of the rule that the author of a written document is to
be taken as having intended his words to have the meaning which they convey
understood in the light of relevant surrounding circumstances. In the case of libel, the
same words may reasonably convey a different meaning of to each of a number of
different persons or group of persons and so be held to be defamatory of more persons
than one.

After giving careful consideration to the matter, I am unable to hold that the fact that
defamatory words are true of (A) Makes it as a matter of law impossible for them to be
defamatory of(B) which was in substance the main argument on behalf of the appellants.
At first sight, this looks as tough it would lead to great hardship, but the hardships are in
practice not so serious as might appear, at any rate in the case of statements which are ex
27
facie defamatory. Persons who make statements of this character may not unreasonably
be expected, when describing the person of whom they are made, to identify that person
so closely as to make it very unlikely that a judge would hold them to be reasonably
capable of referring to someone else, or that a jury would hold that they did so refer.
This is particularly so in the case of statements which purport to deal with actual facts. If
there is a risk of coincidence it ought, I think, in reason to be borne, not by the innocent
party to whom the words are held to refer but by the party who puts them into
circulation. In matters of fiction, there is no doubt more room for hardship even in the
case of matter of fact it no doubt possible to construct imaginary facts which would lead
to hardship. There may also be hardship if words, not on their faces defamatory, are true
of (A) but are reasonably understood by some as referring to (B) and, as applied to (B),
are defamatory. Such cases, however, must be rear. The law is I understand it is well
settled, and can be altered by legislation. The appeal must be dismissed with costs.

Mac Kinnon, LJ. : The arguments in this case have ranged over a wide field, and we
have been referred to many authorities. I do not propose to examine these many cases,
but I propose to state the conclusions as to the law as to which I have arrived after
examining them.

First, if A publishes to another person or persons words which upon their reasonable
meaning refer to B, then, if those words are defamatory as holding B up to hatred,
ridicule, or contempt, and if the words so referring B cannot be justified as true, A may
be liable for damages to B. Second ly, the reasonable meaning of the words, upon
question whether they refer to B, must be tested objectively, and not subjectively. The
question is what do the woi ds mean as words, not what did A in his own mind mean by
them or intend them to mean. Thirdly, A cannot plead as a defence that he was unaware
of B's existence. fourthly, A cannot plead as a defence that the words are, in their
reasonable meaning, equally capable of referring to C, and that, when referring to C,
they are true. Fifthly, there has been reference in some of the cases (notably by Farwell,
L.J., in Hulton € & Co. v. Joanes, to negligence or recklessness on the part of A in
making publication. If the words on their reasonable meaning, do refer to B, I think it is
immaterial whether A was either negligent or i eckless in not ascertaining the existence
of B, or guarding against the Applicability to him of the words. If B establishes his
claim, in assessing his damages the jury may take into account all the
circumstances of the
27
publication. The negligence or recklessness of A may well be among such circumstances
of the publication. Further or otherwise, negligence or recklessness on the part of A is
immaterial. It is hardly necessary to add, sixthly, the rule, which is elementary —
namely, that it is the primary duty of the judge to decide whether the words complained
of are capable of a meaning that is defamatory of B and only if he answers that question
in the affirmative to leave to the jury the question whether or not they are in fact
defamatory of B, and if so, what damages he shall be awarded.

DU Parcq, L.J. : the submissions upon which the appellants rely may be stated shortly as
follows. (i) the evidence would not have justified a finding by the jury that reasonable
persons would have understood the words complained of to refer to the plaintiff. The
ground of this submission is that the w'ords were not capable of such a meaning. (ii)
Even assuming that the words were not capable of a meaning defamatory to the plaintiff,
the fact that they were true of another person affords a good defence to the appellants.

There was evidence, in my opinion, which would justify a jury in finding, in the
language of the statement of claim, that the description “”Harold Newstead, 30 year old
Camberwell man” substantially first the plaintiff. The plaintiff is known as a
haridresser's assistant to a comparatively wide circle of customers and other
acquaintances in Camberwell, where he has acquired a modest fame. A reasonable man
who had some acquai‹itance with him might have been prudent enough, on reading the
alleged libel, to say, “This may refer to some other Harold Newstead,” but I am not
satisfied that every reasonable man would necessarily have been so cautious. The man
who believes no ill of his neighbour until the accusation is proved beyond doubt against
him is without question a reasonable man, but it would be fallacious to argue that every
reasonable man attains to that high standard of judicial fairness. Evidence proving the
existence of another person to whom the words might have been taken to refer is only
relevant to this first question because it proves the words to have been taken to refer is
only relevant to this first question because ir proves the words to have been capable of
more than one meaning, and of at least one meaning which would not be defamatory of
the plaintiff. It cannot now be argued (in this court, at any rate) that, in the words of
Scrutton, L.J., in Cassidy v. Daily Mirror Newspapers:

...if worcls are capable of several meanings, some defamatory and some innocent, that
should not be left to the jury...

28
The correct view is that, if the words are reasonably capable of two or more meanings,
of which one is defamatory, it must be left to the jury to determine in which sense a
reasonable man would undei stand them.

If I am right in rejecting the appellants first submission, it is necessary to come to a

decision on the interesting and difficult question raised by the second. In my opinion, it
is now settled law that, in the words of Russell, L.J., in Cassidy v. Daily Mirror
Newspapers:

Liability for libel does not depend on the intention of the defamer , but on the fact of
defamation.

I quote these words of Russel, L.?., as conveniently summarising the effect of his own
judgement, and of that of Scrutton, L.J., in Cassidy's case, and as clearly stating the
principle established by Hulton (E) & Co. v. Joanes. It seems to me to be impossible,
consistently with this principle, to make the defendant's liability depend on the accuracy
of his words in relation to some person other than the plaintiff at whom he says he meant
to strike. Nor do I think, with the greatest respect for the view expressed by Farwell,
L.J., in Hulton (E) & Co. v. Jones, that any doctrine which would make the defendant's
liability depend upon his state of mind, or the degree of care which he exercised, is
reconcilable with this principle. In the present case, and in any similar case in which a
defendant says that he was only speaking the truth of another person, and not meaning to
attack the plaintiff, it may well be right to direct the jury that a reasonable man must be
aware of the possibility (it is for them to say in each case whether it amounts to a
possibility) that in any district there may be more than one person of the same name, and
that , in considering how a reasonable man would understand the words, they must
assume that he will r•ad them with such care as may fairly be expected of him, not
ignoring any parts of the description which are inapplicable to the plaintiff. If the
defendant has been careful and precise, he may by his care avoid the risk of a successful
action, but he cannot, in my opinion, escape liability merely by showing that he was
careful and that his intentions were good.

Defamation of a class

The question whether an individual can sue in respect of words which are directed
against a group or body, or class of persons generally was considered by the House of

29
 Lords in Knuppfer v. London Express Newspaper Ltd and the law may be summarised as
follows:

1. The crucial question is whether the words were published “of the plaintiff’ in the
sense that he can be said to be personally pointed at, rather than any arbitrary general
rule, subject to exceptions, that liability cannot arise from words published of a class.
2. Normally where the defamatory statement is directed at a class of persons no
individual belonging to the class is entitled to say that the words were published of
him. “No doubt it is true to say that a class cannot be defamed as a class, nor can an
individual be defamed by a general reference to the class to which he belongs.
3. Words which appear to apply to a class may be actionable if there is something in the
words, or in the circumstances in which they were published, which indicates a
particular plaintiff or plaintiff‘s.
4. In practice, the smaller the group upon which the attack is directed the more likely it
is that plaintiff will be able to make out a case, so that if the reference is to a limited
group like trustees, members of a firm or tenants of a particular building, all will
generally be able to sue.
5. It has been said that each member if a body “no matter how large (would be) defamed
when the libel consisted in the assertion that no one of the members of a community
was elected unless he had committed a murder”, but it is thought that to bring this
into play the charge must be very specific indeed.
6. Whether there is evidence upon which the words can be regarded as capable of
referring to the plaintiff is always a matter for the judge and this case is no different.

Defamation of deceased person

It is not a tort to defame a deceased person. This legal proposition is implicit in the
requirement that the plaintiff to succeed in a suit for defamation must prove that the
offending words referred to him. Further such an action does not survive for the benefit of
the plaintiff s estate on his death. But if the statement though referring expressly to the
deceased reflects upon the plaintiff and affects his reputation an action will be maintainable.
For example, if the statement is that W (the deceased mother of the plaintiff) was a prostitute,
the plaintiff may sue in defamation on the ground that the statement affects his reputation but
not on the ground that it defames his deceased mother.
30
The person defaming a dead person may, however, be criminally prosecuted if the
imputation would have injured the reputation of that person if living, and is intended to be
hurtful to the feelings of his family or other near relatives.

Defamation of company or corporation

In the case of a company or a trading corporation, words calculated to reflect upon it in the
way of its property or trade or business, and to injure it therein, are actionable without proof
of special damage: but if they refer only to the personal character or reputation of its officers,
then proof of special damage is necessary.

Defamation of Government and Local Authorities

Ina democracy governed by the rule of law where freedom of speech is a fundamental right
“every citizen has a right to criticize an inefficient or corrupt government without fear of
civil as well as criminal prosecution. This absolute privilege is founded in the principle that it
is advantageous for the public interest that the citizen should not be in any way fettered in his
statements, and where the public service or due administration of justice is involved he shall
have the ri‹ght to speak his mind freely.” In a free democratic society “those who hold office
in government and who are responsible for public administration must always be open to
criticism. Any attempt to stifle or fetter such criticism amounts to political censorship of the
most insidious and objectionable kind.” Further, “what has been described as the ‘chilling
effect’ induced by the threat of civil actions for libel is very important. Quite often the facts
which would justify a defamatory publications are known to be true, but admissible evidence
capable of proving those facts is not available. This may prevent the publication of matters
which it is very desirable to make public.” The above considerations have led to the rule
which is the same in United States, United Kingdom, south Africa and India that “so far as
the government, local authority and other organs and institutions exercising governmental
power are concerned they cannot maintain a suit for damages for defaming them.

Who can sue for defamation?

Only living persons can sue for defamation. It is permissible to speak ill of the dead, at least
in law. Even if an action has been initiated, if the plaintiff dies immediately before the trial

31
the action is said to die with him. This is important from the point of view of defendants who
might be tempted to spin out the pre-trial periods for long as possible waiting for sick or
elderly plaintiff to die, as he happened in some cases. Measures taken recently to speed up
litigation should remedy this situation, but it must be remembered that in any case the
defendants will have to pay their own costs if the plaintiff does die before the trial
commences.

Any person who can prove that the defamatory words refer to him can sue for defamation.
However, there is some doubt as to the position of corporate bodies. It appears that trading
corporations do have a right to sue for defamation (Upjohn v. BBC and Others (1994) in
which the makers of the drug ‘lialcion’ sued over allegations that they had concealed
dangerous side effects for 20 years.

The following case deals with the right of a local government authority to file a case for
defamation.

Derbyshire Countv Council v. Times Newspaper Ltd and others (1993) 1 All ER 1011

The plaintiff, local authority brought an action against the publish.ers of a Sunday
Newspaper, its editor and 2 journalist claiming damages for publishing article about the
authorities investment and control of its superannuation fund which were alleged to be
defamatory of the local authority. The defendants applied to have the action struck out as
disclosing no cause of action against them on the grounds, inter alia, that a local authority,
being a non -trading corporation, could not maintain an action for a libel which reflected on
its administrative reputation when no actual financial loss was pleaded. The judge dismissed
the defendants application, holding that a local authority could sue for libel in respect of its
governing or administrative reputation even though no actual financial loss was pleaded,
since it was an ordinary incident of all corporations, whether trading or municipal, that they
could sue for libel. The defendant's appeal to the Court of appeal was allowed on the grounds
that a local authority could not sue for libel in respect of its governing or administrative
reputation if no actual financial loss was pleaded because if it were to have that right it would
be able to stifle legitimate public criticism of its activities. The authority appeal .o the House
of Lords.

LORD KEITH OF KINKEL

My Lords,
32
This appeal raises, as a preliminary issue in an action of damages for libel, the question
whether a local authority is entitled to maintain an action in libel for words which reflect on
it in its governmental and administrative functions. That is the way the preliminary point of
law was expressed in the order of the Master, but it has opened out into an investigation of
whether a local authority can sue for libel at all.

There are only two reported cases in which an English local authority has sued for libel. The
first is Manchester Corporation v. Williams [1891] l Q.B. 94: 63 L.T. 805. The defendant
had written a letter to a newspaper alleging that "in the case of two if not three departments
of our Manchester city council, bribery and corruption have existed and done their nefarious
work." A Divisional Court consisting of Day J. and Lawrance J. held that the statement of
claim disclosed no cause of action. The judgment of Day J. atp. 96 of the Queen's Bench
report is in these terms:

"This is an action brought by a municipal corporation to recover damage for what is alleged
to be a libel on the corporation itself, as distinguished from its individual members or
officials. The libel complained of consists of a charge of briber'y and corruption. The
question is whether such an action will lie. I think it will not. It is altogether unprecedented,
and there is no principle on which it can be founded. The limits of a corporation's right of
action for libel are those suggested by Pollock C.B. in the case which has been referred to. A
corporation may sue for a libel affecting property, not for one merely affecting personal
reputation. The present case falls within the latter class. There must, therefore, be judgment
for the defendant."

In National Union of General and Municipal Workers All ER 593. [1946] KB 81 the Court
of Appeal held that a trade union could. In general maintain an action in tort, and that an
action for libel was no exception to that rule. No detailed consideration was given to the
nature of the statements in respect of which the action might lie.

The second case involving proceedings by a iocal authority is Begnor Regis UDC v
Campion [t972] 2 All ER 61, [1972] 2 QB 169. a decision of Browne J. Mr Campion had
distributed at a meeting of a ratepayer's association a leaflet savagely attacking the council,
which sued him for libel. At the trial Mr Campion conducted his own case without the
assistance of solicitors or counsel. Browne I found in favour of the council and awai'ded it

33
damages of £2,003. He stated his intention to apply a principle to be found in National Union
of General and Municipal Workers v. Gillian, from which he quoted extensively. He
continued ([1972] 2. All ER 61 at 66. [1972] 2 QB 169):

“Just as a trading company has a trading reputation which it is entitled to protect by bringing
an action for defamation. so in my view the council. as a local government corporation. have
a "governing" reputation which it is equally entitled to protect in the same way-of course.
Bearing in mind the vital distinction between defamation of the corporation as such and
defamation of its individual officers or members. I entirely accept the statement made in
Gatley on Libel and Slander (6th edn, 1967) p 409, para 890): "A corporation or company
cannot maintain an anion of libel or slander for any words which reflect. not upon itself. but
solely upon its individual officers or members."

Finally, he said ([l972]2 All ER 61 at 69, [l972]2 QB 1 69at 178)

'The actual decision in the Manchester case can perhaps be supported. as counsel for the
council suggested. on the argument that the libel there •NaS not capable of referring to a
corporation consisting ( as the plaintiffs did) of the mayor. aldermen and citizens. and not as
here of the chairman and councillors. i think that that case is distinguishable from this on that
ground, and also on the ground that in my view none. of the statements in the leaflet in this
case actually impute corruption. But I hope that the Court of Appeal will soon have occasion
to consider the Manchester case.' (Browne's emphasis.)

It is to be observed that Browne J did not give any consideration to the question
whether a local authority or any other body exercising governmental functions might not be
in a special position as regards the right to take proceedings for defamation. The authorities
cited above clearly establish that a trading corporation is entitled to sue in respect of
defamatory matters which can be seen as having a tendency to damage it in the way of its
business. Examples are those that go to credit such as might deter banks from lending to it,
or to the conditions experienced by its employees which might impede the recruitment of the
best qualified workers or make people reluctant to deal with it.

The trade union cases are understandable upon the view that defamatory matter may
adversely latest the union's ability to keep its members or attract new ones or to maintain a
convincing attitude towards employers. Likewise in the case of a charitable organization the
effect may be to discourage subscribers or otherwise impair its ability to carry on its

34
charitable objects. Similar considerations can no doubt be advanced in connection with the
position of a local authority.

I Defamatory statements might make it more difficult to borrow or to attract' sun able staff
and thus affluent adversely the efficient carrying out of its Functions. There are. however.
features of a local authority which may be regarded as distinguishing it from other types of
corporation. Whether trading or non-trading The most important of these futures is that it is a
governmental body. Further. it is a democratically elected body. the electoral process
nowadays being conducted almost exclusively on party political lines. It is of the highest
public importance that a democratically elected governmental body. or indeed any
governmental body. should be open to uninhibited public criticism The threat of a civil
action for defamation must inevitably have an inhibiting effect on freedom of speech.

In City of Chicago v Tribune Co (ton) 307 ill 595 the Supreme Court of lllin0ts held that the
city could not maintain an action of damages for libel. Thompson C] said (at 606-607):

'The fundamental right of freedom of speech is involved in this litigation and not
merely the right of liberty of the press. If this action can be maintain•d against a newspaper it
can be maintained against every private citizen who ventures to criticize the ministers who
are temporarily conducting the affairs of his government. Where any person by speech or
writing seeks to persuade others to violate existing law or to overthrow by force or other
unlawful means the existing government he may be punished but all other utterances or
publications against the government must be considered absolutely privileged While in the
early history of the struggle for freedom of speech the restrictions were enforced by criminal
prosecutions. It is clear that a civil action is as great if not a greater restriction than a criminal
prosecution. If the right to criticise the government is a privilege which, with the exceptions
above enumerated, cannot be restricted then all civil as well as criminal actions are
forbidden. A despotic or corrupt government can more easily stifle opposition by a series of
civil actions than by criminal prosecutions...

Aftei giving a number of reasons for this. he said (at 607-6083:

It follows, therefore, that every citizen has a right to criticize an inefficient or corrupt
government without fear of Civil as well as criminal prosecution This absolute privilege is
founded on the principle that it is advantageous for the public interest that the citizen should

35
not be in any way fettered in his statements. and where the public service or due
administration ofjustice is involved he shall have the right to speak his mind freely.'

It is of some significance to observe that a number of departments of central government in

the United Kingdom are statutorily created corporate tons including the Secretaries of State
for Defense , Education and Science, Energy, Environment and Social Services. If a local
authority can sue for libel there would appear to be no reason in logic for holding that any of
these departments (apart From two which are made corporations only for the p urpose of
holding land) were not also entitled to sue. But as is shown by the decision in AG v Guardian
Newspapers Ltd (No 2) [1988] 3 All ER 545 [1990] I AC 109, a case concerned with
confidentiality, there are rights available to private citizens which institutions of central
government are not in a position to exercise unless they can show that it is the public interest
to do so same applies in my opinion to local authorities. In both cases I regard it as right for
this House to lay down that not only is there no public interest favouring the right of organs
of government, whether central or local to sue for libel but that it is contrary to the public
interest that they should have it. It is contrary to the public interest because to admit such
actions would place an undesirable fetter on freedom of speech

In the case of a local authority temporarily under the control of one political party or another
it is difficult to say that the local authority as such has any reputation of its own. Reputation
in the eyes of the public is more likely to attach itself to the controlliiig political party and
with a change in that party the reputation itself will change. A publication attacking the
activities of the authority will necessarily be an attack on the body of councillors which
represents the controlling party or on the executives who carry on the day-to-day
management of its affairs. If the individual reputation of any of these is wrongly impaired by
the publication any of these can himself bring proceedings for defamation. Further. it is open
to the controlling body to defend itself by public utterances and in debate in the council
chamber.

The conclusion must be. in my opinion, that under the common law of England a
local authority does not have the right to maintain an action of damages for defamation. That
was the conclusion reached by the Court of Appeal. which did so principally by reference to
art to of the European Convention on Human Rights (Con vcntion for the Protection of
Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953); Cmd

36
8969). to which the United Kingdom has adhered but which has not been enacted into
domestic law Article 10 is in these terms

'(i) Everyone has the right to freedom of expression. This right shall include freedom to hold
opinions and to receive and impart information and ideas without interference by public
authority and regardless of frontiers (a) The exercise of these freedoms, since it carries with
it duties and responsibilities, my be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society, in the interests
of national security, territorial integrity or public safety, for the prevention of disorder or
crime, for the protection of health or mora1s,for the protection of the reputation or rights of
others,for preventing..the disclosure of information received in confi‹ience, or for
maintaining the authority and impartiality of the judiciary.’

As regard the word ‘necessary in a democratic society’ in connection with the restrictions on
the right to freedom of expression which may properly be prescribed by law, the
jurisprudence of the European Court of Human Rights has established that 'necessary'
requires the existence of a pressing social need. and that the restrictions should be no more
than is proportionate to the legitimate aim pursued.

There is no actionable wrong of defamation unless the words are communicated to at least
one person other than the plaintiff. Publication in the commercial sense, as in a book or
newspaper or broadcast is not necessary, though these are of course likely to attract larger
damages. Publication is of the essence of libel and slander because the wrong is injury to
reputation, not insult, and reputation is what other people think of one, and not one's own
opinion of oneself. At one time the statement of claim would contain an allegation that the
words were published "maliciously" but this was purely formal and the practice has ceased.
Malice—or "express malice" as it was cal!ed to distinguish it from the purely formal
allegation in the statement of claim—will, however, defeat the defenses of fair comment and
qualified privilege.

The handing back by a printer or typist to the author of a defamatory document processed by
them on the author's instructions is not a publication by them But there is, of course,
publication to the print•r or typist when the author hands the document to their. Unless such
communication is protected by qualified privileges, it follows that if a manager of a
company in the course of his duties dictates to a secretary a memorandum defamatory of a fe
flow- servant, not only is the manager liable for the libel but the company is also vicariously

37
liable,

38
though it has been suggested that the doctrine of common employment should be used to
protect the company in such a case.

Communication of defamatory matter by a husband to his wife or vice versa is not a

publication: what passes between them is protected on the ground that any other rule "might
lead to disastrous results to social life", though in modern conditions a broader rule based on
"domestic relations", however hard to define, might be more apt. But communication by a
third party to one spouse of matter defamatory of the other is a publication; even at a time
when husband and wife could fairly be said to be one person for legal purposes that was not
"for the purpose of having the honour and feelings of the husband assailed and injured by
acts done or communications made to his wife."

The statement must be intelligible tc the recipient of it. There is no publication if it is in a

foreign language which he does not understand or if he is too deaf to hear it or too blind to
read it, though in the case of books, newspapers or broadcasts it will of course be inferred
that it was intelligible to the majority of recipients. Similarly in the case of postcards there is
a presumption that these are published on being sent through the post without proof that
anyone did in fact read them. This is based on the practical impossibility of proving that
anyone did read them.

Normally publication will be an Intentional act but this need no necessarily be so. If , for
example, D sends a letter to P containing defamatory imputations about P (which would not
be actionable if read by P) D wi!l be liable if the letter is not marked "private" (or with some
similar expression) and is opened in the ordinary course of business by an employee of P. It
is a question of what the defendant should reasonably have foreseen would happen to letter.

The defendant sent a registered notice to the plaintiff's home address which -contained
defamatory allegations against him. The notice was in the Urdu script and the plaintiff was
not conversant with that script. He got the notice read over by another person in the presence
of some other persons. It was held that in the absence of the pleading and findings that the
defendant wrote the notice in the Urdu character knowing that the plaintiff did not know
Urdu and therefore it would necessitate asking somebody to read the notice to him, the
defendant was not responsible for the publication of the libellous matter.

DISTRIBUTORS

39
The common law spreads the net of liability very wide. In the case of an article in a
newspaper, for example, not only is the author treated as a publisher, but so is the editor, the
printer, the proprietor of the news-paper,“ indeed anyone who participated in the
publication." I low ever, those concerned with the mere mechanical distribution of material
—newsagents, libraries, booksellers—could escape liability if they could prove (1) that they
were innocent of any knowledge of the libel contained in the work; (2) that there was
nothing in the work or in the circumstances in which it came to them or was dissein inated
by !hem which ought to have led them to suppose that it contained a libel; and (3) that when
the work was disseminated by tnem, it was not by any negligence on their part that they did
not know it contained the libel."

Repetition :-

'Every repetition of defamatory words is a fresh publication and creates a fresh cause of
action against each successive publisher. Thus a libel which is printed will bring liability to
the author, printer and publisher. In theory, this liability could extend to secondary
publishers such as newsagents and booksellers. To mitigate the hardship that this would
bring the courts introduced the defence of innocent dissemination.

Vizetelly v Mudle's Select Library Ltd (1900) 2 QB 170

The publishers of a book had asked for Its return as it defendants, who operated a circulating
library, were held book after they had received the warning.

A person who makes a defamatory statement may by a reasonably foreseeable repetition of

the libel by a third party.

Slipper v British Broadcasting Council [1991] 1 QB 283

The plaintiff sued for libel in respect of a film which was broadcast by tb.e defendants. The
Court of Appeal refused to strike out his claim for damages arising from reviews of the film
in the press which repeated the libel. The law on republication was said to be an aspect of
novus actus interveniens. If the republication is unauthorized then prima facie the chain of

39
causation is broken. On the facts the defendants could arguably foresee that the libel would
be repeated in the reviews.

Communication between husband and wife

In the eyes of law husband and wife are one person and the communication of a defamatory
matter from the husband to the wife or vice versa is no publication. In T.J. Ponner v. M.C.
Verghese the question which had arisen was whether a letter from the husband to th• wife
containing defamatory matter concerning the father-in-law (wife's father) could be proved in
an action by the father-in-law against his son-in-law. In that case, one T.J. Ponner wrote a
number of letters to his wife, Rathi, containing some defamatory imputations concerning
Rathi's father, M.C. Verghese. Rathi passed on those letters to her father. The father-in-law
launched a prosecution against his son-in-law complaining the defamatory matter contained
in those letters. Ponner contended that the letters addressed by him to his wife are not, except
with his consent, admissible in evidence by virtue of Section 122, Indian Evidence Act, and
since the wife is not permitted to disclose those letters, no offence of defamation could be
made out. It may be relevant here to quote Section 122 Indian Evidence Act, which reads as
follows :

"No person who is or has been married shall be compelled to disclose any communication
made to him during marriage by any person to whom he is or has been married; nor shall he
be permitted to disclose any such communication, unless the person who made it, or his
representative in interest, consents, except in suits between married persons, or proceedings
in which one married person is prosecuted for any crime committed against the other."

The Kerala High Court held that the letters meant for the wife could not be proved in the
Court either by her or through any relation of her to the prejudice of her husband because
such communications are precluded by the law to be disclosed and what cannot be or is not
proved in a court has to be assumed as non-existent in the eyes of law." Ponner was
therefore, held not liable.

The Supreme Court reversed the decision of the Kerala High Court. It was held that even
though in view of Section 122, Indian Evidence Act, the complainant cannot seek to support
his case upon the evidence of the wife of the accused, but if the communication between the
husband and the wife have fallen to his hands the same can be proved in any other way:
According to Shah.

40
"The complainant claims that he has been defamed by the writing of the letters. The letters
arc in his possession and are available for being tendered in evidence. We see no reason why
inquiry into that complaint should, or the preliminary contentions raised , be prohibited. If
the complainant seeks to support his case only upon the evidence of the wife of the accused,
he may be met with the bar of Section 122 of the Indian Evidence Act. Whether he will be
able to prove the letters in any other manner is a matter which must be left to be determined
at the trial and cannot be made the subject-matter of an enquiry at this stage.

"Communication of a matter defamatory of one spouse to the other is sufficient publication.

In Theaker v. Richardson," defendant wrote a letter to the plaintiff making false allegations
of her being a prostitute and a brothel-keeper. The letter was sent under the circumstances
that the plaintiffs husband in all probability would have read the same. The plaintiffs
husband opened and read it. The defendant was held liable.

THEAKER VS RICHARDSON 1962 I ALL ER 229

The plaintiff and defendant were both members of Mablethorpe Urban District Council.
They wore members of the same political party and there is no political basis for the ill
feeling between the parties; but that there was ill-feeling is not in doubt, and, on the morning
of May 5, 1960 the plaintiff, who lives in Mable. thrope and is the wife of a man who
delivers coal in the district, met the de. Pendant's wife in the town and there appears to have
been n quarrel between them.

The defendant also lives in Mablethorpe and is a jeweller, and he name on the plaintiff and
his who in the course of this quarrel and found his wife to be in a very distressed condition.
He took her home in his car, and then, according to his evidence returned to his shop to get
some election literature, as an election for the council was to take place within a few days.
He was extremely upset and angry shout the events which had happened and decided to
write to the plaintiff. He started to write the letter but found that his writing in his angry,
state wasillegible. So he mailed again and this time he typed it. There is no doubt that t he
letter was abusive and defamatory. It. is agreed that there is no truth in the allegations made
by the defendant and his conduct was inexcusable, he accused the plaintiff of shoplifting and
of being and prostitute and a brothel keeper and the language in which the allegations were
expressed seems to have been deliberately offensive.

41
His evidence is that having written the letter, he put it in an ordinary business envelope. it
gumming one and rented it by gumming down the flap and further making it secure by
putting across the flap a piece of Sellotapo. He addressed the envelope by typewriter to ”
Coun. Mrs. D. Theaker, Victoria Rond, Mablethorpe ", and decided to take it himself to the
house and if possible deliver it in person to the plaintiff. On reaching the plaintiff's house,
however, he saw a ear outside which led him to believe that some person had Called on the
plaintiff on the business of th.e council, so he put the letter through the letter-box and walked
away. It appears that the plaintiff was not in the home at the time, but her husband came in
shortly afterwards, anti, seeing the letter on the mat, opened it. so he says, thinking that it was
an election address. Having read it, he looked at the address on the envelope and then
realized, again so he says, that the letter was for his wife.

The questions on this issue put to the jury by the learned judge were as follows: (i) Did the
plaintiffs husband open and read the letter? (ii) Did the defendant anticipate that someone
other than the plaintiff would open and read the letter? (iii) Was it a natural and probable
consequence of the defendant's writing and delivery of the letter that the plaintiffs husband
would open and read the letter! (iv) How much damages? The jury answered questions (i).
(ii) and (iii) in the affirmative and assessed the damages at £500. Judgment was accordingly
entered for that amount and it is from this that the appeal stems.

It is first necessary to consider whether the jury was perverse in answering questions (ii) and
(iii) affirmatively. The test appears to do whether any jury acting reasonably could come to
such a conclusion. Counsel for the defendant has urged that there was not sufficient evidence
to justify the finding of the jury. It. is unnecessary for him to say that there was no evidence.
That is not the test. He drew attention to the evidence of the defendant on the writing and
delivery of the letter. His submission was that., if this evidence was accepted, there was
certainly no publication, and it was not contended at the hearing that there was publication to
anyone other than the plaintiffs husband, but that if the defenciant's evidence was not
accepted there was still no sufficient evidence whereby a jury, acting reasonably, could have
come to a conclusion in favour of the plaintiff.

It. is necessary therefore to examine the evidence given by the plaintiff and on her behalf
and counsel for the plaintiff relied on a number of matters which she submitted showed that
the defendant anticipated that the letter would ho opened and read by someone other than the
plaintiff. It was conceded that regard should be had to the contents of the letter as question

42
(ii) involved condoration of the defendant's state of mind. The principal points she relied on
were (i) the address on the letter was typewritten. (ii) the letter was unsigned and there was
nothing on it to indicate by whom it was sent, (iii) the letter was not stamped, nor was it
marked " private ", (iv) the envelope was a manilla envelope of the typo frequently used for
business correspondence. It was submitted that. these matters were in themselves sufficient
to warrant the finding re' the jury hut there was added reason in the first sentence of the
defamatory letter: " her the way you treated Mrs. Richardson today I am going to show you
lip in every way I possibly can It was argued that these words were more consistent with
the publication of the letter than otherwise. The husband in his evidence gave as his reason
for opening the letter that he thought ” it was an election address " It is difficult to
understand why he should have thought this in the circumstance of the case, except that there
was a local election pending but that is not a matter for our consideration. What has to be
decided is the attitude of m ind of the defendant, not that of the plaintiffs husband, and it is
difficult to see why the defendant should have anticipated that the plaintiffs husband or
anyone else should make a mistake of that kind. My view of the evidence is that none of the
matters relied on, taken together or severally, tends to show that the defendant anticipated
that someone other than the plaintiff would read that letter, and in consequence I have come
to the conolusion that. The finding in answer to question (ii) was perverse, and cannot be
allowed to stand.

If question (ii) is to be answered in the iiegative question (iii) is still left open for
consideration. The question there, which was answered in the affirmative by the jury, is: "

Was it a natural and probable consequence of the defendant's writing and delivery of the
totter that the plaintiffs husband would open and read the letter? "

Again, in my judgment, this answer was perverse. It is to be remembered that the envelope
was sealed by using the gum provided and also by the use of a piece of Sellotape applied in
such a way as to be an effective sealing device. Surely it cannot be assumed that it is a
general practice for one spouse to open the letters of the other, and there was no evidence
that the defendant knew that it might happen in this ease. Indeed, the evidence of the
husband is that in his experience election addresses were usually delivered in unsealed
envelope, and to gave no other cogent reason for opening the letter apart from saying that
from time to time requests for the delivery of coal were pushed through the letter box by his
customers. I find it very difficult to accept, and do not accept, that it was a natural and

43
probable consequence of

43
the defendant's writing and delivery of the letter that the plaintiffs husband would open and
read it, i.e.. that he would make the mistake which he says that he made. I come to this
conclusion after taking into account the other matters which have been urged in favour of the
jury's answer to questions. (iii) There is, in my judgment no ground for it. It was perverse.

If the conclusion to which I have come is the right one. the question of damages does not
arise. as judgment must necessarily be given for the defendant-

HARMAN, L.J.:

Now the defence wear as I have said, that this was an action which the defendant could not
have anticipated and that, therefore there was not any publication. The defendant himself in
the witness-box did state that. lie had no intention that the plaintiffs husband should read it,
but the jury obviously disbelieved this as they were entitled to do. The judge put the matter
very clearly before the jury and they answered the second question. viz, whether the
defendant anticipated. etc., in the affirmative. Counsel for the defendant Rays that the judge
should not have allowed the jury to consider the question, or, which comes in the suite thing
in this case, that the jury by the answer they gave showed perversity which in validates the
verdict. Mrs. Lane. in her cogent argument for the plaintiff. ailed on the following
circumstances in support of her plea that, the defendant did intend or intuit be supposed to
have intended the communication to reach a wider public than her to whom it was riddreesed.
She argued that. a man who creates a libellous document. of this sort must take good care of
it does not get about. She points out that he did not mark the envelope " private ", nor stamp
it nor sign it and that it was contained in a business envelope and might he m W itaken for a
circular, particularly in the circumstances that election addresses in a circular form were
being delivered by the plaintiff and others at that very time in the ordinary course of the
election held nine days later. She also relies, as showing the state of the defendant's mind, on
the feet., first. that. he did not sign the document, second, that he changed his mind need is
type-writer rather than his own manuscript., and, third, that the letter itself by its first
paragraph announces his intention to chow the plaintiff up in every way and " put people
wise to you ". That Melee are all strew,' in the wind is admitted, but she argued cumulatively
they do add up to a suspicion that the defendant in his race took no thought to confine the
document to the plaintiff alone. It was suggested for the plaintiff that the court should take
judicial notice of the fact that husbands do read wives' letters. This I reject, bet it ekes seem
44
to me that the master of Cho house. when confronted with itis unstanipted document on the
looking like a circular, is not. unlikely to pick it. tip and read. The third (hest inn left to the
jury was whether it was the natural and profitable consequence of what the defendant, did
that. the plaintiffs husband would read the letter. The defendant argued that this also should
not have been left to the jury, and urged that. the plaintiffs husband could not have thought
that the envelope contained an election address or something of the sort because it was sealed
not only by the gum on the envelope but by the piece of Sellotape, and that his behavior in
showing the letter to his stepdaughter showed that he was only looking for a stick with which
to bent the defendant.

A number of cases on publication were cited to us, but each oliviensly depends on its own
facts and no one is very pertinent to the instant case. In the leading case, Dencroix v.
Thevenot (I), the plaintiffs success depended on the facts that the libel was addressed to his
place of business and that the defendant knew that a clerk employed there read his master's
letters.

Ir. thus appears that the answer to the question of publication of a libel contained in a letter
will depend on the state of the defendant's knowledge, either proved or inferred, of the
conditions likely to prevail in the place to which the libel is d•stined. I have considered the
rival arguments and am of opinion that these are just. the kind of questions of fact which
ought to be left to a jury and that the learned judge was fully justified in doing so. Moreover,
in ans•vering questions (ii) and (iii) in the affirmative, the jury, who saw the parties and no
doubt observed their demeanor had some material on which, if, as they did. they disbelieved
the defendant and accepted the explanation offered by the plaintiffs husband, they were not
without warrant.. and could not ho said to have been perverse in coining to an affirmative
conclusion on both of them. Whether the judge left, to hiself , or this court for that matter,
would have arrived nt the same conclusion is not. to my mind material. No complaint is
made of the judge's summing up, which certainly did nothing to encourage the jury to say
yes ", and I can see no reason why the verdict could be set aside. There remains the question
whether the damages were so excessive that. there ought. to he a re-trial, for it merlins clear
on the authorities that it is not open to this court in a libel action tried with a jury to revoke
the award of damages and sut›stitute a lesser sum of its own:

PEARSON, L.J.: The jury could properly take into account also the station in life and
occupation of the plaintiff's husband. who was employed by coal merchants to deliver coal,

45
and the size and character (if known to the jury) of the town in which ho lived, end the facts
that there was an election in prospect and that election literature was being distributed. Tho
plaintiffs husband was not. likely to be expert in handling documents or to be much
interested in them or to attach much import. ancu to thorn. The question arising can be put in
this form. The plaintiffs husband, acting carelessly and thoughtlessly but meaning no harm,
picked up and opened and began to read the letter. Was his conduct something unusual, out
of the ordinary and not reasonably to be anticipated, or was it something which could quite
easily and naturally happen in the ordinary course of events? In my judgment that is a fair
formulation of the question, and, when so formulated, it is seen to be a question of fact.
which in a trial with a jury can and should be loft to and decided by the jury, who have
observed the witnesses giving evidence and have and are expected to use their own common
sense and general knowledge of the world and perhaps some particular knowledge (if they
have it) of the locality concerned and the ways of its inhabitants.' In my judgment, it would
not be right to substitute the opinion of this court for the opinion of the jury on such a
question arising in the course of a trial with a jury.

HUTH VS HUTH COURT OF APPEAL [1914-1915] ALL ER REP 242

The defendant sent a letter to his wife in an unsealed envelope suggesting that they were not
mulled and tha.t their children were illegitimate. The wit c could not sue her husband in tort -
but see now the *saw Reform Husband and Wife) Act 196a. s, 1). In order to circumvent
this, his children brought this action for libel. To prove publication the family butler was
called to give evidence that he had looked at the contents of the envelope before placing it on
the breakfast table. The plaintiffs lost their action at first instance and appealed to the Court
of Appeal.

LORD READING CI: ... It cannot be contended, and is not contended. as I under-stand, that
if a person, in breach of his duty, opens an envelope and reads a letter, and there is no reason
to expect that he would be likely to commit this breach of duty, (he fact that he opens the
envelope and reads the letter amounts to publication by the person who sends it: but it is
argued in this case that, as the document was enclosed in an unsealed and unguinmed
envelope, it must be assumed that the defendant knew or ought to have known, or might have
expected that a servant in the house would open a letter in such an envelope so addressed. It
is further said that an envelope unsealed, with a half penny stamp on it, is liable always to be
opened by the postal authorities and the document is liable to be examined end read, and

46
consequently that it must be taken that there was some evidence of publication to the Post
Office. With regard to the first point, that is the publication to the butler, I am clearly of
opinion that there is no evidence of any such publication to the butler upon the point merely
whether the fact that the butler opened the letter and read it because he was curious, would
make it publication by the defendant. Fortunately, it is no part of a butler's duty to open the
letters that come to the house of his master or mistres: addressed to the master or mistress:
and in this case there is nothing exceptional in It except that his curiosity was excited by
reason of the lady being addressed by her maiden name. No one can help a man's curiosity
being excited, but it does not justify him in opening a letter, and it could not make the
defendant liable for the publication to the butler of the contents of the envelope, because it
must of course be borne in mind that, however insulting and offensive the matters may have
been which the: husband wrote to his wife, they w'ere addressed to the wife and only intend
for the .wife. and she also saw them, no action for libel could be brought by her. An Action
for libel can only be brought if there-is publication to some third person. The publican-boil to
the butler in this case is not sufficient. It has been laid down, and I think rightly that the court
will take judicial notice of the nature of the document, which is the postcard, and will
presume, in the absence of evidence to contrary, that others besides the person to whom it is
addressed .will read and have read what is written thereon, In this way the presumption- of
law based on the authorities arises. If, ofcourse„...every in such a case air that, the defendant
could establish that the postcard never was read by a single person — if it were possible to
establish such a state of things, although it is very difficult to conceive— he would,
notwithstanding the prescription spaced in the action, because he would have pride. that there
was PO Publication. But of course he cannot, and does hot. The fact that this is practically
impossible to prove that anyone did read the postcard is the very reason, The law takes
judicial notice of the nature document, and says the .mere fact that it is written on a postcard
which is posted must be taken as some evidence that's third person will read it, or has read it.
Now, this is clear law, and is quite beyond dispute...

I cannot think that the court, entitled to presume, merely because the envelope went through
the post that it would be opened. I suppose what is said with regard to these letters is true of
every package which is set through the Post Office. It is true .of every parcel which is sent
through the Post Office. and in certain circumstances it may be true also of other documents.
-even though they may be sealed; but that does'not justify_the presumption to which counsel
for the plaintiffs is driven in this case — that is; that such a letter in an envelope which is
47
ungummed is to be treated just as a postcard. I. think that that point fails, and that there is
therefore no evidence of publication in this case..

DEFENCES

DEFAMATION SHOULD BE ABALANCE BETWEEN PROTECTION OF

REPUTATION AND FREEDOM OF SPEECH. SUCH A BALANCE IS ACHIEVED BY
THE DEFENCES OF DEFAMATION

There are a number of specialised defences tc defamation. These are:

1. Justification (truth)

2. Fair comment

3. Privilege, which may be (a) absolute or (b) qualified.

4. Offer of amends under the Defamation Act 1996.

A) Justification

The plaintiff does not need to prove that the statement is false, for the law presumes that in
his favours. But the defendant can plead justification (the technical name for truth here) and
if he can establish it-by evidence he has a good defence though he may have been actuated
by or spite. Is not that the law has any special relish for the indiscriminate infliction of truth
on other people, i›ut defamation is an injury to a person's reputation, and if people think the
worse of him when they hear the truth about him that merely shows that his reputation has
been reduced to its proper level.

(I) Must be true in substance

Subject to the fact that the question whether a minor inaccuracy is sufficient to defeat the
defence of justification is one for the jury, it is a general principle that the justification must
be as broad as the charge, and must justify the precise charge. To justify the repetition of a
defamatory statement already made, therefore, the defendant must prove that the content of
the statement was true, not merely that it was made. If I say to you, "Smith told me that
Brown swindled his creditors", I can justify this only by proof that Brown did swindle his
creditors; its idle to show merely that Smith gave me the information...

(2)Proof ofjustification.

48
The standard of proof ofjustification is the normal civil one of balance of probabilities, but as
in other civil cases the seriousness of the defendant's allegation may be taken into account in
determining whether he had discharged that burden." Where the defamatory allegation was
that the plaintiff had committed a criminal offence, the rule of the common law was that his
criminal conviction was not even prima facie evidence of guilt for the purpose of the
defamation proceedings, and this meant that the defendant had to prove the guilt of the
plaintiff all over again if the defence ofjustification was to succeed."'—

Wakley vs Cooke and Healey (1849) 4 Exch 511

The defendant called the plaintiff a 'libellous journalist'. In evidence the defendant proved
that tree plaintiff had once been successfully sued for libel. The defence ofjustification failed
as the court took the view that In context the words meant that the plaintiff habitually
libelled people. The defendant had failed to justify this meaning.

Bookbinder v Tebbltt [1989] 1 All ER 1169

It was alleged that during an election meeting the defendant had defamed the plaintiff by
calling a poiicy of a council (of which the plaintiff was loader) a 'damn fool idea'. The policy
was to overprint stationery with the words Support Nuclear Free Zones. The plaintiff alleged
a natural meaning that irresponsible conduct had resulted in large-scale squandering of publ
ic money. The Court of Appeal refused to allow evidence in relation to a wide range of
counc il activities alleged to constitute overspending of public money. The words. in the
context in which they were used, were not capable of raising this general charge.

B) FAIR COMMENT

It is a defence to an action for defamation that the statement is a fair comment on a matter of
public interest. Honest criticism ought to be, and is, recognised in ary civilised system of law
as indispensable to the efficient working of any public institution or office, and as salutary
for private persons who make themselves or ’their work the object of public interest.

The requisites of fair comment

Matter commented on must be of public interest It is a question for the judge, not the
jury, whether the matter is of public interest. No principle for decision is laid down, the
books contenting themselves with examples, but the public interest is not confined within
narrow limits and covers matters in which the public is legitimately interested as well as

49
matters in

50
which it is legitimately concerned. It ranges from the behaviour of a Prime Minister or of a
sanitary authority to the conduct of a flower show and includes the conduct of every public
person and every public institution, but it is not limited to what is sometime; called "public
life"

An observation or inference from facts, not an assertion of fact. The very existence of the
defence demonstrates that a comment may be defamatory in law, but the proposition that fair
comment is confined to statements of opinion is an over-simplification. The borderline
between fact and opinion is difficult to draw, which is why a critic should take pains to keep
his facts and the comment on them separate from each other. for if it is nut reasonably clear
that the matter purports to be comment, he cannot plead fair comment as a defense and is
thrown back ; on justification or privilege.” To describe the line, "A XIr. Wilkinson, a
clergyman,"" as the worst in English poetry is obviously comment, for verification of it as
exact is impossible. But some cases are much nearer than that to the borderline between
comment and fact. In Dakhyl v. Lalloucherc. " the plaintiff described himself as "a specialist
for the treatment of deafness, ear, nose, and throat diseases". The defendant described him as
a "quack of the rankest species". Was this comment or an allegation of fact? It was held by
the House of Lords that it might be comment. Again, calling a man a fornicator or a swindler
looks like a statement of fact, but what is calling him immoral or a sinner? Are immorality
and sin facts or matters of opinion? To this there is no dogmatic answer. Every statement
must be taken on its merits. The very same words may be one or the other according to the
context. To say that "A is a disgrace to human nature", is an allegation of fact. But if the
words were, "A murdered his lather and is therefore a disgrace to human nature", the latter
words are clearly a comment on the former. The key point is not the nature of the stateiTlent
standing alone but whether, in the context in which it is published, it can be seen to be a
comment upon facts stated or referred to in it...

Kemsley v Foot [1952] AC 345

The defendant published an article which referred to one of the Beaverbrook newspapers
under the heading, 'Lower than Kemsley'. Kemsley was the owner of another group of
newspapers. Was this fact or opinion? The House of Lords decided that as the conduct of the
Kemsley Press was the fact on which the comment was made the defence of fair comment

51
 Protection to the judicial officers in India has been granted by the Judicial Officers
Protection Act, 1850.” The counsel has also been granted absolute privilege in respect of any
word, spoken by him in the course of pleading the case of his client. If, however, the words
spoken by the counsel arc irrelevant, not having any relevance to the matter before the court,
such a defence cannot be pleaded." The privilege claimed by a witness is also subject to a
similar limit. A remark by a witness which is wholly irrelevant to the matter of enquiry is not
privileged. In J iwan Mal v. Lachlunan Das" on the suggestion of a compromise in a petty
suit by trial court, Lachhman Dass, a witness in the case, remarked, "A compromise cannot
be effected as Jiwan Mal stands in the way. He had looted the whole of Dinangar and gets
false cases set up." J iwan Mal about whom the said remark was made, was a Municipal
Commissioner of Dinangar. but he had nothing to do with the suit under question. In an
action against Lachhmandas for slander, the defence was pleaded as the statement was made
before a court of law. The High court considered the remarks of the defendant to be wholl y
irrelevant to the matter under enquiry and uncalled it for, rejected the defence of prviledge
and held the defendant liable.

QUALIFIED PRIVILEGE

In certain cases the defence of qualified privilege is also a-vailable. Unlixe the defenc• of
absolute privilege, in the case it is necessary that statement must have been made without
malice. For such a defence it must be available that there must be an occasion of making s
statement. There are certain occasions on which the law regards freedom of speech as
essential, and provides a defence of absolute privilege which can never be defeated, no
matter how untrue or malicious the statements may be. The defendant in order to availe the
defence must prove that

a) The statement was made on privileged occasion i e it was in discharge of duty or

protection of an interest or a fair report of parliamentary, judicial and other public
proceedings.
b) The statement was made without any malice.

EXAMPLES OF QUALIFIED PRIVILEGE

The following are the cases of qualified privilege:

53
 When the circumstances are such that the defendant is under a duty of making a
communication to a third person who has a corresponding interest in receiving it; or where
the defendant has an interest to protect and the third person has a duty to protect that interest.

A communication, injurious to the character of another made bona fide from a sense of duty,
legal, moral, or social, and reasonably necessary for the due discharge of such duty, and
made with a belief in its truth, is privileged. There must in fact be an interest or duty in the
person to whom the libel is published. It is not sufficient that the maker of the statement
honestly and reasonably believes that the person to whom it is made has such an interest or
duty.,8 the person must have _ an interest in the matter communicated. The principle is that
"either there must be interest in the recipient and a duty to communicate in the speaker, or an
interest to be protected in the speaker and a duty to protect it in the recipient." But the
privilege is restricted to the communication that is relevant to the duty or interest and does
not extend to irrelevant matters.

Communications made in cases of confidential relationship.—A confidential relationship

exists, for instance, between husband and wife, father and son, guardian and ward, and
servant.' principal arid agent, solicitor and client,' partners or even intimate friends.' In these
cases there exists between. the parties such a confidential relation as to throw on the
defendant the duty of protecting the interest of the person concerned. If a lawyer bona fide
acts in his professional capacity on the instructions of his c!ient he will have the protection of
qualified privilege." The privilege of solicitor and client has been generally dealt with as
qualified privilege.'

Communications made in self-protection A Statements necessary to protect defendant's

own interests.—

A statement made by a person in the conduct of his own affairs, in matters where his interest
is concerned, is privileged. Any one, in the transaction of business with another, has a right
to use language bona fide. which is relevant to that business, and which a due regard to his
own interest makes necessary even if it should directly or by its consequences be injurious or
painful to another.

B. Statements provoked by plaintiff.—A wan has a right to defend his character against
false aspersions. If the defendant makes any statement bona fide in answer io the attack
made on

54
was available. It is riot necessary that the facts on which the comment is based should be
stated in the alleged libel.

Telnlkott v Matusevl'ch [1992] 2 AC 343

The plaintiff wrote an article in the Daily Telegraph criticising the BBC Russian Service for
over-recruiting from Soviet ethnic minorities. The defendant published a reply in the same
paper accusing the plaintiff of racism. The majority of the House of Lords held that in
considering whether a statement Ire the defendant's letter was fact or comment, the letter
must be considered without reference to the original article for context. It was likely that
large numbers of persons who read the letter would not have read the article.

The majority argued that a letter writer had to make clear that he was writing comment and
not misrepresenting the content of the article. Lord Ackner (dissenting) felt that the freedom
to comment on matters of public Interest was vital to the functioning of a democratic society
and that it should be sufficient for the defendant to give an honest opinion and identify the
’publication on which he was commenting.

Comment must be fair

Fairness means that the comment must be an honest expression of the defendant's opinion:
'The question which the jury must consider is this —— would any fair man, however
prejudiced he may he, however exaggerated or obstinate his views, have said that which this
criticism has said' (Merivale v Carson (1888) 20 QBD 275, 281) It -could he said that the
defence therefore protects unfair comment. The test of fairness is an objective one, in the
sense that any man, however prejudiced and obstinate, could honestly have held the views
expressed (Telnikoff v Matusevitch). If the comment is shown to be objectively fair; the
court will presume the statement of opinion is honest unless malice can be proved.

C) PRIVILEGE

In addition to the cases covered by the defence of fair comment the law recognises that there
are other occasions on which freedom of communication without fear of an action for
defamation is more important than the protection of a person's reputation. Such occasions are
said to be "privileged",” and the privilege may he either absolute or qualified. Absolute
privilege covers cases in which complete freedom of communication is regarded as of such

51
paramount importance that actions for defamation cannot be entertained at all: a person
defamed on an occasion of absolute privilege has no legal redress, however outrageous the
untrue statement which has been made about him and however malicious the motive of the
maker of it. Qualified privilege, on the other hand, though it also protects the maker of an
untrue defamatory statement, does so only if the maker of the statement acted honestly and
without malice. If the plaintiff can prove malice the privilege is displaced and he may
recover damages, but it is for him to prove malice, once the privilege has been made out, not
for the defendant to disprove.

Absolute privilege

There are certain occasions on which the law regards freedom of speech as essential, and
provides a defence of absolute privileg• which can never be defeated, no matter how untrue
or malicious the statements may be. AU communications in the situations listed below are
protected from defamation proceedings, and are described as 'absolutely privileged'.

Absolute privilege applies to:

• Statements made in either House of Parliament. MPs frequently say very rude things
about one another and about people in the public eye. They are permitted to say
whatever they like in Parliament,
Articles 105 (2) of our Constitution provides that (a) statements made by a
member of either House of Parliament in Parliament, and (b) the publication by or
under the authority of either House of Parliament of any report, paper, votes or
proceedings, cannot be questioned in a court of law. A similar privilege exists in
respect of State Legislatures, according to Article 194 (2).
• Parliamentary papers of an official nature, that is papers, reports and proceedings
which Parliament orders to be published.
• No action for libel or slander lies, whether against judges, counsels, witnesses, or
parties, for words written or spoken in the course of any proceedings before any court
recognised by law, even though the words written or spoken were written or spoken
maliciously, without any justification or excuse, and from persoi‹al and anger against
the person defamed.” Such a privilege also extends to proceedings of the tribunals
possession similar attributes."

52
him by the plaintiff and for the sole purpose of defending himself from such an attack, then
the occasion is privileged.' But the statement must not he irrelevant.'

Communications made to persons in public position Such communications must be for

public good. Information given for the pur-pose of redressing grievances, or securing public
morals is privileged, for instance, a complaint to the Home Secretary about a Magistrate," or
to the Post-master-General about a postmaster, or to a Bishop about a clergyman," or to a
member of Parliament by a constituent to bring to the notice of a Minister impro-per conduct
of a public official." The person to whom the information is given must be competent to deal
with the subject-matter,' otherwise there can be no privilege.

The following cases would make the understanding of absolute and qualified privilege more
clear;

TEJ KIRAN AND OTHERS VS N SAVJIVA REDDY AND OTHERS (1970) 2 SCC 272

HIDAYATULLA C. J. —This is an appeal from the order, August 4, 1969, of a Full Bench
of the High Court of Delhi ; rejecting a plaint filed by the six appellants claiming a decree for
Rs. 26,0001- as damages for defamatory statements made by Shri Sanjiva Reddy (former
Speaker of the Lok Sabha), Shri Y. B. Chavan (Home Minister) and three members of Parlia-
ment on the floor of the Lok Sabha during a Calling Attention Motion. . The High Court held
that no proceedings could be taken in a Court of law in respect of u hat was said on the floor
of Parliament in view of Article 105(2)

3. The facts of the case, in so far as they are relevant to nor present pur-pose, may be
brioly statetl. The appellants claim to he the n:Imirers and kilowatts of Jagadoru
Shankaracharya of Coverdan Peeth, Puri. In March, 1969 a World llinrin 1 l,l igions
Conference was held at Patna. The Shankaracharya took part in it and is reported to
have ohcnr NI that tintourliabilicy was in harmony with the tenets of 1 1 inditisrn
and that no law could oar, in its war and to have N..tIkeil mit when the National
Aritlitnn
..ts played.
4. On April 2, VIGO Shri Narendra Kumar Sake, M. I'. moved a Calling Attention
Motion in the 1.0k Sabha and gave p.ii Oculars of the happcnintt. /. discussion
followed and the respondent., psi. the Shankara-charyn. Arrnrding to the appellants,
55
the respondent's t\.) tr,"gave themselves up to the use of language which was more

55
 common place than serious, more lax than dignified, more unparliamentary than
sober and jokes and puns were bandied around the playful spree, and his Holiness
Jagadguru Shankaracharyn Atlanta Shri Vilnishit Swami Shri Niranjan Deva Teertha
of Govardhatt Peeth. Puri, was made te, appear as a hyperon, (sic) dog." The
appellants who hold the Shankaracharya in high esteem felt scande,tised and brought
the action for damages placing the damages at Rs. 26,000.. The plaint was r...jeeted
ac the High Court held t1,at it had no jut n to try the suit.
5. Article 105 of the Constitution, which defines the pn,v.-rs privileges arnl inntmnities
of Parliament and its Members, provides : "105. (l) Subject to the provisions of this
Constitution and to the rules and standing orders regulating the procedure of
Perliament, there freednin of speech in Parliament. (.') No member of Parliament
shall be liable to any proceedings in any Court in respect of anything said or any vote
given by him in Parliament ur any committee thereof, and no person shall be so
liable in respect of the publication by or under the rithority of either House of
l'rlitotent of Any report, paper, votes or proce-edings.,"
6. The High Court held that in view of clause (2) of the Article no proceedings could lie
in any Court in Parliament and the plaint m ust, therefore, be r%ected.
7. Mr. Lekhi in arguing this appeal drew our atteniion to an observation of this Court in
Special Reference No. I of 1964', where this Court dealing with the provisions of
Article 212 of the Constitution pointed out that the immunity under that Article was
against an alleged irregularity of procedure but not against an illegality, and
contended that the same principle should be applied here to determine whether what
was said was outside the discussion on a Calling Attention Motion. According to him
the immunity granted by the second clause of the one hundred and fifth article was to
what was relevant to the business of Parliament and not to something which was
utterly irrelevant.
8. In our judgment it is not possible to read the provisions of the article in the way
suggested. The article means what it says in language which could not be plainer The
article confers immunity inter alia in respect of "anything said in Parliament". The
word 'anything' is of the widest import and is equivalent to 'everything'. The only
limitation arises from the words 'in Parliament' which means during sitting of
Parliament arid in the course of the business of Parliament. We are concerned only
with speeches in Lok Sabba. Once it was proved that Parliament was sitting and Its

56
 business was being transacted, anything said during the course of that business was
immune from proceedings in any Court this immunity is not only complete but is as
it should be. It is of the essence of parliamentary system of .Government that
people's representatives should be free to express themselves without fear of legal
consequences. What they say is only subject to the discipline of the rules of
Parliament, the good sense of the members and the control of proceedings by the
Speaker. The Courts have no say in the matter and should really have none.
9. "gave themselves up to the we of language which was more common place than
serious, more lax than dignified, more unparliamentary than sober and jokes and
puns were bandied around the playful spree, and his Holiness Jagadguru
Shankaracharyn, Shri Vihuthit Swami Shri N iranjan Deva Teertha of Covardhatt
Peeth, Puri, was made to, appear as a leperous (sic) dog." The appellants who hold
the Shankaracharya in high esteem felt scandal ised and brought the action for
damages placing the damages at Rs. 26,000. The plaint was rejected as the High
Court held that it had no jurisdiction to try the suit.
10. 5. Article 105 of the Constitution, which defines parliamentary privileges and
immunities of Parliament and its Members, provides :
11. "105. (I) Subject to the provisions of this Constitution and to the rules and standing
orders regulating the procedure of, there shall be freedom of speech in Parliament.
12. (2) No member of Parliament shall he liable, for any proceedings in any Court in
respect of anything said or any vote given by Parliament or any committee thereof,
and no person shall be so liable in respect of the publication by or under the
authority of either House of Parliament of any report, paper, votes or proceedings, "
The High Court held that in view of clause (2) of the Article no proceedings could I
ie in any C.ourt in Parliament and the plaint must, therefore, he rejected. Mr. Lokhi
in arguing this appeal drew our attention to an observation of this Court in Special
Reference No. 1 of 19641, where this Court dealing with the provisions of Article
212 of the Constitution pointed out that the immunity under that Article was again st
an alleged irregularity of procedure but not against an illegality, and contended that
the same principle should be applied here to determine whether what was said was
outside the discussion on a Calling Attention Motion. According to him the
ilrmunity granted by he second clause of. the one hundred and fifth article was to
what was relevant to the business of Parliament and not to something which was

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utterly irrelevant. In our

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judgment it is not possible to read the provisions of the article in the way suggested.
The article means what it says in language which could not be plainer The article
confers immunity inter alia in respect of "anything said in Parliament". The word
'anything' is of the widest import and is equivalent to 'everything'. The only limitation
arises from the words 'in Parliament' which means during sitting of Parliament and in
the course of the business of Parliament. We are concerned only with speeches in
Lok Sabha. Once it was proved that Parliament was sitting and Its business was be
ing transacted, anything said during the course of that business was immune from
proceedings in any Court this immunity is not only complete but is as it should be. It
is of the essence of parliamentary system of Government that people's representatives
should be free to express themselves without fear of legal consequences. What they
say is only subject to the discipline of the rules of Parliament, the good sense of the
members and the control of proceedings by the Speaker. The Courts have no say in
the matter and should really have none.

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