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No. 2. — Parkes v. Prescott, 38 L. J. Ex. 113.

it does appear the defendant gives judgment against himself by approving of it." And WiGHTMAN, J., said,

And WIGHTMAN, J., said, " It appears to me to be proper to be left to them, whether on the evidence they believed that this libel was what the defendant meant to be published. It would be very dangerous to allow a man to direct a libel to be published on a particular subject, and after he has approved of what is published to defend himself on the ground that something has been added to his original communication.” In that case, the evidence showed that the defendant had expressed to the editor of the newspaper his desire that he would ' show up'the prosecutor, and then told him the story, and after the interview, when the libel appeared, the defendant told the editor that he had seen it, and liked it very much. The facts of that case are entirely different from the present, and it certainly cannot be said to be an authority in favour of the plaintiff in this case, except so far as the obiter dictum of Lord DENMAN is concerned, and that appears to have arisen out of the argument as applied to the particular facts of that case. The case of Adams v. Kelly, , also cited for the plaintiff, does not really maintain the contention of the counsel for the plaintiff. In that case the editor of a newspaper had published, with slight alterations not affecting the sense, a written statement from his reporter, the contents of which had been communicated to him by the defendant for the purpose of such publication, and under such circumstances it was rightly held that the defendant would be liable. Those cases, when the facts of them are carefully considered, fall far short of the proposition of the counsel for the plaintiff in the present case. I think that, in order to support the allegation that the defendants caused to be printed and published the libels set out in the declaration, there ought to have been evidence of a communication, either verbal or written, of the entire substance of the libel to the reporter as the libel to be published, or that either before or after the publication thereof, the defendant sought to be charged saw and approved of the particular libel; and inasmuch as in the present case the expressions used only indicate a wish that the gentlemen of the press present would notice the case or call attention to it, or give publicity thereto, leaving the mode and manner to the absolute discretion of the reporter, I am of opinion that Baron MARTIN was justified in holding the evidence not to be sufficient to be submitted to the jury, in support of the issue joined upon the pleadings.

Venire de novo.

No. 3.

Emmens v. Pottle and Others, 16 Q. B. D. 354, 355.

Emmens v. Pottle and Others.

16 Q. B. D.354-358 (s. C. 55 L. J. Q. B. 51; 53 L. T. 808; 34 W. R. 116).

[354]

Libel. · Publication. Newspaper. The vendor of a newspaper in the ordinary course of his business, though he is primâ facie liable for a libel contained in it, is not liable, if he can prove that he did not know that it contained a libel ; that his ignorance was not due to any negligence on his own part ; and that he did not know, and had no ground for supposing, that the newspaper was likely to contain libellous matter. If he can prove those facts he is not a publisher of the libel.

But whether such a person can escape liability for the libel if he knows, or ought to know, that the newspaper is likely to contain libellous matter, Quaere.

Appeal from the judgment of WILLS, J., at the trial of the action with a jury.

The action was brought to recover damages for an alleged libel.

The plaintiff by his statement of claim alleged that“ the defendants on or about the 11th of February, 1885, at Nos. 14 and 15, Royal Exchange, in the city of London, did falsely and maliciously publish of the plaintiff in the form of an article appearing in the newspaper known as Money, bearing date the 11th of February, 1885, by the sale thereof by their servants or agents, at such time and places aforesaid, for the defendants' benefit, to one Ernest Clarke,” certain words set out in the statement of claim. The plaintiff alleged that in consequence of the premises he had been and was greatly injured in his credit and reputation, and he claimed £5000 damages. By the statement of defence (par. 1) the defendants denied that

they had published the alleged libel. And further and (* 355] * alternatively (par. 2) the defendants said “ that they are

newsvendors, carrying on a large business at 14 and 15, Royal Exchange in the city of London, and as such newsvendors, and not otherwise, sold copies of the said periodical called Money, in the ordinary cause of their said business, and without any knowledge of its contents, which is the alleged publication.”

The plaintiff by his reply joined issue on the first paragraph of the defence. And, as to the second paragraph of the defence, the plaintiff said “that the allegations therein contained are bad in substance and in law, on the ground that, even if the defendants

No. 3. — Emmens v. Pottle and Others, 16 Q. B. D. 355, 356.

sold copies of the said periodical without any knowledge of their contents and in the ordinary cause of their business, as alleged in their defence, still, inasmuch as the defendants sold the said copies as newsvendors for reward in that behalf, the said allegations disclose no answer to the plaintiff's claim."

The action was tried on the 23rd of June, 1885, before WILLS, J., and a jury.

The jury, in answer to questions put to them by the Judge, found “that the defendants did not nor did either of them know that the newspapers at the time they sold them contained libels on the plaintiff; that it was not by negligence on the defendants' part that they did not know there was any libel in the newspaper; and that the defendants did not know that the newspaper was of such a character that it was likely to contain libellous matter, nor ought they to have known so." The Judge directed the jury to assess the damages provisionally, and they assessed them at one farthing, and the Judge then ordered judgment to be entered for the defendants, with costs.

The plaintiff did not move for a new trial, but appealed from the judgment.

The appellant in person.

The proprietor of a newspaper is liable in damages for a libel contained in it, even though the publication takes place in his absence and without his knowledge. On the same principle a man who makes a profit by the sale of a newspaper should be held liable for a libel. Rex v. Walter, 3 Esp. 21 (6 R. R. 808); Rex v. Dodd, 2 Sess. Cases, 33; Watts v. * Fraser, 7 C. & P. [* 356] 369; R. v. Williams, 26 Howells St. Tr. 653, 656 ; R. v. Carlile, 3 B. & Ald. 167, 1 Chitty, 451 (22 R. R. 338); Day v. Bream, 2 M. & Rob. 54; Hooper v. Truscott, 2 Scott, 672 ; Odgers on Libel, pp. 160, 161. Even a lunatic may be liable for a libel. Mordaunt v. Mordaunt, L. R., 2 P & D. 109 (per KELLY, C. B., at p. 142).

(Lord ESHER, M. R. That depends upon whether he is sane enough to know what he is doing.]

Why should a newsvendor be able to disseminate a libel without being in any way responsible for it? This would be a very dangerous doctrine. The publisher of the paper may be a man of straw or a bogus company. A grocer is liable if he sells an adulterated article, even if he has taken every care to obtain a pure article.

3

VOL. IX,

No. 3.

- Emmens v. Pottle and Others, 16 Q. B. D. 356, 357.

[Lord ESHER, M. R. In that case the liability is imposed by statute.]

If a man deals in dangerous articles he ought to be liable for any injury which is caused by them.

[Bowen, L. J. Are you not bound to show that a newspaper is in its nature a dangerous thing ?]

There are respectable papers and there are disreputable papers. The liability would not be productive of any practical harm : the question of damages is always left to the jury, and the costs would be in the power of the Court.

Julian Robins, for the defendants, was not heard.

Lord ESHER, M. R. I am afraid it will not be much satisfaction to the plaintiff, as I am going to decide against him, for me to say that it would be impossible for any one to have argued a case in better form or with better logic than he has argued his own case. The principle is no doubt a very important one, and one well worthy of consideration. I do not intend to lay down any general rule as to what will absolve from liability for a libel persons who stand in the position of these defendants. But it is a material element in their position that the jury have found in their favour

as they have done. I agree that the defendants are primá [* 357] facie liable. They have handed to other people a * news

paper in which there is a libel on the plaintiff. I am inclined to think that this called upon the defendants to show some circumstances which absolve them from liability, not by way of privilege, but facts, which show that they did not publish the libel. We must consider what the position of the defendants was. The proprietor of a newspaper, who publishes the paper by his servants, is the publisher of it, and he is liable for the acts of his servants. The printer of the paper prints it by his servants, and therefore he is liable for a libel contained in it. But the defendants did not compose the libel on the plaintiff, they did not write it or print it; they only disseminated that which contained the libel. The question is whether, as such disseminators, they published the libel? If they had known what was in the paper, whether they were paid for circulating it or not, they would have published the libel, and would have been liable for so doing. That I think, cannot be doubted. But here, upon the findings of the jury, we must take it that the defendants did not know that the paper contained a libel. I am not prepared to say that it would be

Nos. 2, 3.

Parkes v. Prescott; Emmens v. Pottle.

- Notes.

sufficient for them to show that they did not know of the particular libel. But the findings of the jury make it clear that the defendants did not publish the libel. Taking the view of the jury to be right, that the defendants did not know that the paper was likely to contain a libel, and, still more, that they ought not to have known this, which must mean, that they ought not to have known it, having used reasonable care, — the case is reduced to this, that the defendants were innocent disseminators of a thing which they were not bound to know was likely to contain a libel. That being so, I think the defendants are not liable for the libel. If they were liable, the result would be that every common carrier who carries a newspaper which contains a libel would be liable for it, even if the paper were one of which every man in England would say that it was not likely to contain a libel. To my mind the mere statement of such a result shows that the proposition from which it flows is unreasonable and unjust. The question does not depend on any statute, but on the common law, and, in my opinion, any proposition the result of which would be to show that the Common Law of England is wholly unreasonable and unjust, cannot be part of the Common * Law of Eng- [* 358] land. I think, therefore, that, upon the findings of the jury, the judgment for the defendants is right.

COTTON, L. J., concurred.

BOWEN, L. J. The jury have found as a fact that the defendants were innocent carriers of that which they did not know contained libellous matter, and which they had no reason to suppose was likely to contain libellous matter. A newspaper is not like a fire ; a man may carry it about without being bound to suppose that it is likely to do an injury. It seems to me that the defendants are no more liable than any other innocent carrier of an article which he has no reason to suppose likely to be dangerous. But I by no means intend to say that the vendor of a newspaper will not be responsible for a libel contained in it, if he knows, or ought to know, that the paper is one which is likely to contain a libel.

Appeal dismissed. ENGLISH NOTES. Publication for the purposes of a civil action means communication of a defamatory matter to a person other than the person concerning whom it has been uttered. For instance, in a case brought by bill in the Star-Chamber, where the defendant dispatched a libellous writing

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