No. 2.- Parkes v. Prescott, 38 L. J. Ex. 107, 108.

2d edit., Vol. II., p. 225, “ According to the general rule of law, it is clear that all who are in any degree accessory to the publication of a libel, and by any means whatever conduce to its publication, are to be considered as principals in the act of publication. Then, if one suggest illegal matter in order that another may write or print it and that a third may publish it, all are equally amenable for the act of publication when it has been so effected. " Here defamatory matter was uttered for the express purpose of being published, and the representatives of the public press were invited and requested to publish it.

[BYLES, J. The difficulty is to connect the actual libel with the authority; you must prove that the defendants authorized this particular libel.]

It is sufficient, if the account actually published was, in substance, within the meaning of the authority given. The case of The Queen v. Cooper, 8 Q. B. 533; 15 L. J. Q. B. 206, is on allfours with the present.

[BYLES, J. In that case there was evidence of subsequent approval of the libel.]

Lord DENMAN, C. J., says that " It is enough that there is a substantial identity."

[MELLOR, J. He is the only Judge that held so; COLERIDGE, J., and WIGHTMAN, J., rely on the approval. BYLES, J. There may be widely different ways of reporting the same occurrence; one way might insure a verdict for £100, another for a farthing.]

Surely it would be a question for the jury whether the libel actually published was in accordance with the authority.

Philbrick for the defendants. There is no evidence against the defendants that they authorized the publications of the libels set out in the declaration, and the burden of proof lies on the plaintiff. In the first place, the occasion was privileged; and how can the independent wrongful act of the reporter [* 108] convert what otherwise would have been privileged into

*

a libel? Even if it must be taken that there was authority to publish a report, it does not follow that the report to be published was to be libellous, still less that these particular libels were to be published. But, in reality, putting a reasonable construction on what the defendants did, there was no authority or request to publish, only the expression of a hope that the matter would be reported, or, at most, of an honest opinion that it was a matter

No. 2. Parkes v. Prescott, 38 L. J. Ex. 108.

proper to be reported in the public press. He cited Harding v. Greening. 1 Moor, 477.

Giffard in reply.

Cur. adv. vult.

On the 14th of May the judgment of the majority of the Court (KEATING, J., MONTAGUE SMITH, J., and HANNEN, J.) was delivered by

MONTAGUE SMITH, J. This is an action of libel, and came before the Court upon a bill of exceptions to a direction given by MARTIN, B., to the jury on the trial of the cause, directing them to find for the defendants, on the ground that there was not sufficient evidence for their consideration of the publication of the libels. The libels complained of were reports of certain proceedings at a meeting of the board of guardians for the parish of Paddington, which were published in some local newspapers. It appeared in evidence that, at this meeting, a discussion took place respecting the conduct of the plaintiff towards his daughter, who was then an inmate of the workhouse; and the history of the case, as stated at the meeting, in the absence (be it observed) of the plaintiff, and the remarks made upon it were of a highly defamatory nature, — indeed, the story was spoken of by one of the defendants at the meeting as a very scandalous case, with reference to the conduct of the plaintiff. The defendant Prescott was chairman of the meeting, and Ellis, the other defendant, was also present, taking part in the proceedings. Reporters of the local newspapers in which the libels appeared attended the meeting. The following evidence was given to connect the defendants with the publication. The defendant Ellis said he hoped the local press would take notice of this very scandalous case, and requested the chairman to give an outline of it. This was done by several members of the board, and the chief facts were then taken down by the reporters. The defendant Prescott also said, in the course of his statement relative to the case, "I am glad gentlemen of the press are in the room, and I hope they will take notice of it." On which the other defendant, Ellis, said, " And so do I." The defendant Prescott also said he hoped publicity would be given to the matter. It was proved by the reporters that the reports published were a correct summary of what took place, and one of the reporters stated that he had told the editor of the paper what the defendants had said before the publication. It was contended, in

No. 2. Parkes v. Prescott, 38 L. J. Ex. 108, 109.

support of the direction, that the words used by the defendants did not amount to a request to the reporters to publish the proceedings, but were merely the expression of a wish or hope that they would do so; nor to an authority to publish the particular reports in the words in which they, in fact, appeared; and that there was no evidence to go to the jury. But, upon consideration of the circumstances of the case, I think there was evidence for the jury on the two questions which ought to have been submitted to them, viz., first, of a request to publish the proceedings of the meeting relating to the plaintiff's conduct; and, secondly, that the reports contained a correct account of the proceedings as the defendants meant it should appear. There was evidence to the effect that the defendant Ellis not only said he hoped the local press would take notice of the case, but that he requested the other defendant, Prescott, to give an outline of it. For what purpose? Obviously for the very purpose of having the outline so given taken down by the reporters and published in the newspapers. It was further proved that, in pursuance of this request, the outline was given, and the chief facts taken down by the reporters and afterwards put into a report. It seems to me that these facts afford evidence fit, at all events, to be laid before the jury of a request to the reporters to publish an outline or summary of the proceedings, and (taken with the rest of the evidence) to publish their report in such a way as to show the conduct of the plaintiff to have been disgraceful; for a disclosure to the * local [* 109] public of what was called the plaintiff's disgraceful con

duct was the avowed object of the request made by the defendants to the reporters. There was also the clear evidence of the reporters, if the jury had believed it, that the reports were, in substance, correct. I agree with the learned counsel for the defendants, that loose expressions of a mere wish or hope that proceedings should be published would not be sufficient to fix liability on the defendants in cases like the present. I think the words must be of such a kind, and used in such a manner as to satisfy the jury that they amounted to and were, in fact, a request to publish. If the words do amount to such a request, and the publication be made in pursuance of it by the persons to whom it was. addressed, then it seems to me the persons making such request would be responsible for the libellous matter so published. Whether the libellous matter published is in pursuance of and in

No. 2. Parkes v. Prescott, 38 L. J. Ex. 109.

accordance with the request, or a departure from it, and so unauthorized, would be a question to be considered on the circumstances of the particular case. It is, of course, plain that, if a man gives a copy of his speech to another to publish, he is answerable as a publisher of it. It cannot be contended that he would not be equally answerable if he desired a reporter to take down his speech as he delivered it, and to publish it. Then, can it make any difference in his liability that he requested the reporter, instead of publishing the whole speech, to make and publish an outline or summary of it? Surely, in reason and principle, there can be none, where the request is acted on and a correct outline or summary made and published. It was strongly urged for the defendants that they could not be liable unless they authorized the libel in the very words in which it was published. If this argument is correct, then it must follow that a man could never be liable when he desired another to make and publish an outline or summary of a speech or writing, because such an outline or summary necessitates condensation, and consequently alteration of language. But the argument cannot, as it seems to me, be correct. The man who requests another to make and publish an outline or summary of a speech, writing, or proceedings, must know that the words will be, to some extent, those of him who makes such summary or outline; and he must therefore be taken to constitute him an agent for the purpose and be answerable for the result, subject always to the question whether the authority has been really followed. If this be not so, a man might become a libeller with impunity. Again, if the very words of the libel, and not its substance, are, in these cases, to be regarded, a man who gives the manuscript of a libel to an agent to print and publish would not be answerable if, by accident or negligence, there were variations in some of the words, although not in the substance of the libel. There are few decided cases in point, but those to which we were referred are in accordance with the principles on which I think there is evidence of the defendants' liability. In Adams v. Kelly, 1 Ry. & M. 157, the defendant orally communicated to the reporter of the "Observer" newspaper a defamatory story respecting the plaintiff, which he said would make a good case for a newspaper. The reporter took down in writing what the defendant said, and what he so took down was, with some slight alterations made by the editor, not affecting the

sense, published. Lord TENTERDEN told the jury that "what the reporter published in consequence of what passed with the defendant may be considered as published by the defendant,” and the plaintiff had a verdict. In that case the libel had been, in some degree, altered, and the very words of the defendant were not used; but the sense was preserved, and that was sufficient to fix the defendant. In the case of The Queen v. Cooper, the facts were not unlike those in the present case. The defendant asked the reporter of a newspaper to " show up" the prosecutor, and narrated to him a defamatory story which it appeared the reporter had before heard. In that case there was, no doubt, evidence which does not exist here, that the defendant had approved of the libel after it was published by saying he had seen it and liked it very much; and that circumstance was relied on by COLERIDGE, J., as the ground of his decision. Lord DENMAN, C. J., however, in giving judgment in that case, says: "If a man requests another generally to write * a libel, he must be answerable for any libel written [* 110] in pursuance of his request. He contributes to a misdemeanor and is therefore responsible as a principal. He takes his chance of what is to be published." This is a principle larger than is necessary for the decision of this case, for here there is evidence that the libel is a correct account of the proceedings which the defendants requested to be published. In the result, I come to the conclusion that, on principle, it is correct to hold that, where a man makes a request to another to publish defamatory matter, of which, for the purpose, he gives him a statement, whether in full or in outline, and the agent publishes that matter, adhering to the sense and substance of it, although the language be to some extent his own, the man making the request is liable to an action as the publisher. If the law were otherwise, it would, in many cases, throw a shield over those who are the real authors of libels, and who seek to defame others under what would then be the safe shelter of intermediate agents. I make this observation only with reference to the general consequences which would result from the arguments relied on to sustain the defendants' contention. With regard to the particular case, it is enough to say that, my opinion, there was evidence which ought to have been left to the jury, and that consequently there should be a venire de novo. My learned Brothers KEATING and HANNEN concur in this judgment.

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