COUNSEL: Cock, Q.C., and W. Blake Odgers, for the defendant.
Lockwood, Q.C., and Boxall, for the plaintiffs.

SOLICITORS: For plaintiffs: D. E. Langham, for Langham & Son, Eastbourne.
For defendant: T. Lamartine Yates.

JUDGES: Lord Esher M.R. and Bowen, L.J.

DATES 1887 Dec. 1, 2
 

Libel – Newspaper Criticism of Stage Play – Question to be left to Jury – “Fair Criticism” – Privilege.

Where an action of libel is brought in respect of a comment on a matter of public interest the case is not one of privilege, properly so called, and it is not necessary in order to give a cause of action that actual malice on the part of the defendant should be proved. The question whether the comment is or is not actionable depends upon whether in the opinion of the jury it goes beyond the limits of fair criticism.

Campbell v. Spottiswoode (3 B. & S. 769) approved and followed.

Henwood v. Harrison (L. R. 7 C. P. 606) dissented from.

APPEAL by the defendant against the refusal of a Divisional Court (Mathew and Grantham, JJ.) to allow a new trial of the action, or to enter judgment for the defendant.

The action was brought to recover damages in respect of an alleged libel. At the trial before Field, J., it appeared that the plaintiff and his wife were the joint authors of a play called “The Whip Hand.” The defendant was the editor of a theatrical [*276] newspaper called The Stage. Early in May, 1886, the play was performed at a theatre in Liverpool. On May 7 a criticism of the play was published in the defendant’s newspaper. The part of the article charged in the statement of claim as libellous was as follows:– “‘The Whip Hand,’ the joint production of Mr. and Mrs. Herman Merivale, gives us nothing but a hash-up of ingredients which have been used ad nauseam, until one rises in protestation against the loving, confiding, fatuous husband with the naughty wife and her double existence, the good male genius, the limp aristocrat, and the villainous foreigner. And why dramatic authors will insist that in modern society comedies the villain must be a foreigner, and the foreigner must be a villain, is only explicable on the ground, we suppose, that there is more or less of romance about such gentry. It is more in consonance with accepted notions that your Continental croupier would make a much better fictitious prince, marquis, or count than would, say, an English billiard-marker or stable-lout. And so the Marquis Colonna in ‘The Whip Hand’ is offered up by the authors upon the altar of tradition and sacrificed in the usual manner when he gets too troublesome to permit of the reconciliation of husband and wife, and lover and maiden, and is proved, also much as usual, to be nothing more than a kicked-out croupier.” The innuendo suggested was that the article implied that the play was of an immoral tendency.

It was admitted that there was no adulterous wife in the play.

Field, J., in the course of his summing-up to the jury said: “The question is, first, whether this criticism bears the meaning which the plaintiffs put upon it. If it is a fair temperate criticism, and does not bear that meaning, or is not fairly to be read as having that meaning, then your verdict will be for the defendants. …. It is not for a moment suggested by any one that the defendant is animated by the smallest possible malice towards the plaintiffs. There is no ground for saying so, and no one has said so. …. The malice which is necessary in this action is one, which, if it existed at all, will be because the defendant has exceeded his right of criticism upon the play. You have the play before you, you must judge for yourselves. If it is no more [*277] than fair, honest, independent, bold, even exaggerated, criticism, then your verdict will be for the defendant. It is for the plaintiffs to make out their case. They have to satisfy you that it is more than that, otherwise they cannot complain. If you are satisfied upon the evidence that it is more than that, then you will give your verdict for the plaintiffs.”

The jury found a verdict for the plaintiffs with one shilling damages, and the judge entered judgment for the plaintiffs accordingly, and declined to deprive them of costs.

The defendant appealed.

Cock, Q.C., and W. Blake Odgers, for the defendant. This being a criticism upon a matter of public interest, the occasion was privileged, and the plaintiffs were bound to prove express malice, and this they did not do: Henwood v. Harrison (1). At first sight Campbell v. Spottiswoode (2) may appear opposed to this view, but the judgments in that case must be read with reference to the facts of the case, and there the criticism was not confined to the work itself, but contained an attack on the character of the author.

Even if the article bears the meaning which the plaintiffs attribute to it, it is not libellous provided that it is a bonā fide expression of the writer’s opinion: Hibbs v. Wilkinson (3); Eastwood v. Holmes (4); Turnbull v. Bird (5); Carr v. Hood (6); Strauss v. Francis (7); Paris v. Levy (8); Thompson v. Shackell (9); Soane v. Knight (10); Dibdin v. Swan. (11)

A criticism of a play is not “unfair” unless it is dishonest. An outrageous or violent criticism might be evidence of express malice, and in that case the criticism would not be honest. The question of malice was not properly left to the jury. There is no attack on the character of the plaintiffs.

Lockwood, Q.C., and Boxall, for the plaintiffs. The question which Field, J., left to the jury, was, whether the defendant had

(1) Law Rep. 7 C. P. 606.

(2) 3 B. & S. 769.

(3) 1 F. & F. 608.

(4) 1 F. & F. 347.

(5) 2 F. & F. 508.

(6) 1 Camp. 355, n.

(7) 4 F. & F. 939.

(8) 9 C. B. (N.S.) 342.

(9) 1 Mood. & M. 187.

(10) 1 Mood. & M. 74.

(11) 1 Esp. 28.

[*278] exceeded his right of fair criticism on the play. This is the question which has always been left to the jury in such cases: Dibdin v. Swan (1); Thompson v. Shackell (2); Hibbs v. Wilkinson (3); Turnbull v. Bird (4); Campbell v. Spottiswoode.

(5) The question is whether the limits of “fair discussion” have been exceeded. The word “fair” has sometimes been used in conjunction with “temperate” and “honest.”

[BOWEN, L.J.:- I believe the nearest approximation to a definition of “fair” is in Macleod v. Wakley. (6)]

The fullest definition of “fair” is given in Wason v. Walter. (7)In Henwood v. Harrison (8) the privilege of the defendant was of a much higher nature than that of a critic of a play. The defendant had a duty to perform. Here the finding of the jury was in effect that the criticism was not fair, temperate, or honest. All those questions are for the jury. Any matter of public interest may be made the subject of fair and bonā fide discussion in a public newspaper: Davis v. Duncan. (9) But the criticism must be expressed within the bounds of moderation and reason. If it is not, it is a libel, and the question whether it is so expressed must be decided by reasonable men.

The question of malice was withdrawn from the jury.

Odgers, in reply. In the case of a newspaper comment upon a play “fair” is equivalent to bonā fide. So long as the writer confines his comments to the work, and does not attack the character of the author, the expression of his honest opinion cannot be a libel. There can be only two limits of legitimate criticism; a limit arising out of the matter criticised, and a limit arising out of the mind of the critic. It is not necessary that the critic’s opinion should have been formed on reasonable grounds. If the jury found that the expressions used were so strong that no reasonable man could have used them, that would amount to a finding of express malice. The jury were not told by the judge that it was a question for them whether the language used was such that no reasonable man could have used it.

(1) 1 Esp. 28.

(2) 1 Mood. & M. 187.

(3) 1 F. & F. 608.

(4) 2 F. & F. 508.

(5) 3 B. & S. 769; 3 F. & F. 421.

(6) 3 C. & P. 311.

(7) Law Rep. 4 Q. B. 73, at p. 96.

(8) Law Rep. 7 C. P. 606.

(9) Law Rep. 9 C. P. 396.

[*279] LORD ESHER, M.R. This action is brought in respect of an alleged libel contained in a criticism by the defendant upon a play written by the plaintiffs. The first thing to be considered is, what are the questions which in such a case ought to be left to the jury. The first question to be left to them is, what is the meaning of the alleged libel? The jury must look at the criticism, and say what in their opinion any reasonable man would understand by it. I am not prepared to say that in coming to their conclusion they would not also have to look at the work criticised. That, however, is not very material for us to consider now. The proper question was put to the jury in the present case. Two interpretations of the defendant’s article were placed before them. One was that it meant that the play is founded upon adultery, without containing any stigma on the fact that it is so founded. The defendant’s article is alleged to be libellous in that it attributed to the plaintiffs that they had written a play founded upon adultery, without any objection to it on their part, in other words, that they had written an immoral play. On behalf of the defendant it was said that the article had no such meaning, that the expression “naughty wife” does not mean “adulterous wife.” It would not have that meaning in every case, but the question is whether, looking at the context of the article, it has that meaning. If the Court should come to the conclusion that the expression could not by any reasonable man be thought to have that meaning, they could overrule the verdict of the jury; otherwise the question is for the jury.

What is the next question to be put to the jury? Are they to be told that the criticism of a play is a privileged occasion, within the well-settled meaning of the word “privilege,” and that their verdict must go for the defendant, unless the plaintiff can prove malice in fact, that is, that the writer of the article was actuated by an indirect or malicious motive? I think it is clear that that is not the law, and that it was so decided in Campbell v. Spottiswoode (1), which has never been overruled. All the judges, both before and ever since that case, have acted upon the view there expressed, that a criticism upon a written published work is not a privileged occasion. Blackburn, J., in his judgment,

(1) 3 B. & S. 769.

[*280] shews why it is not a privileged occasion. A privileged occasion is one on which the privileged person is entitled to do something which no one who is not within the privilege is entitled to do on that occasion. A person in such a position may say or write about another person things which no other person in the kingdom can be allowed to say or write. But, in the case of a criticism upon a published work, every person in the kingdom is entitled to do, and is forbidden to do exactly the same things, and therefore the occasion is not privileged. Therefore the second question to be put to the jury is, whether the alleged libel is or is not a libel. The form in which that question should be put is, I think, best expressed by Crompton, J., in Campbell v. Spottiswoode. (1) He says: “Nothing is more important than that fair and full latitude of discussion should be allowed to writers upon any public matter, whether it be the conduct of public men, or the proceedings in Courts of Justice, or in Parliament, or the publication of a scheme, or a literary work. But it is always to be left to a jury to say whether the publication has gone beyond the limits of a fair comment on the subject-matter discussed. A writer is not entitled to overstep those limits, and impute base and sordid motives which are not warranted by the facts, and I cannot for a moment think, because he has a bonā fide belief that he is publishing what is true, that is any answer to an action for libel.” He says that upon the answer to the question there stated it depends whether the article upon which the action is brought is or is not a libel. The question is not whether the article is privileged, but whether it is a libel. What is the meaning of a “fair comment”? I think the meaning is this: is the article in the opinion of the jury beyond that which any fair man, however prejudiced or however strong his opinion may be, would say of the work in question? Every latitude must be given to opinion and to prejudice, and then an ordinary set of men with ordinary judgment must say whether any fair man would have made such a comment on the work. It is very easy to say what would be clearly beyond that limit; if, for instance, the writer attacked the private character of the author. But it is much more difficult to say what is within the limit. That must depend upon the

(1) 3 B. & S. at p. 778.

[*281] circumstances of the particular case. I think the right question was really left by Field, J., to the jury in the present case. No doubt you can find in the course of his summing-up some phrases which, if taken alone, may seem to limit too much the question put to the jury. But, when you look at the summing-up as a whole, I think it comes in substance to the final question which was put by the judge to the jury: “If it is no more than fair, honest, independent, bold, even exaggerated, criticism, then your verdict will be for the defendants.” He gives a very wide limit, and, I think, rightly. Mere exaggeration, or even gross exaggeration, would not make the comment unfair. However wrong the opinion expressed may be in point of truth, or however prejudiced the writer, it may still be within the prescribed limit. The question which the jury must consider is this – would any fair man, however prejudiced he may be, however exaggerated or obstinate his views, have said that which this criticism has said of the work which is criticised? If it goes beyond that, then you must find for the plaintiff; if you are not satisfied that it does, then it falls within the allowed limit, and there is no libel at all. I cannot doubt that the jury were justified in coming to the conclusion to which they did come, when once they had made up their minds as to the meaning of the words used in the article, viz. that the plaintiffs had written an obscene play, and no fair man could have said that. There was therefore a complete misdescription of the plaintiffs’ work, and the inevitable conclusion was that an imputation was cast upon the characters of the authors. Even if I had thought that the right direction had not been given to the jury, I should have declined to grant a new trial, for the same verdict must inevitably have been found if the jury had been rightly directed.

Another point which has been discussed is this. It is said that if in some other case the alleged libel would not be beyond the limits of fair criticism, and it could be shewn that the defendant was not really criticising the work, but was writing with an indirect and dishonest intention to injure the plaintiffs, still the motive would not make the criticism a libel. I am inclined to think that it would, and for this reason, that the comment would not then really be a criticism of the work. The mind of the writer [*282] would not be that of a critic, but he would be actuated by an intention to injure the author.

In my opinion this appeal must be dismissed.

BOWEN, L.J. We must begin with asking ourselves, what is the true meaning of the words used in the alleged libel? We have the benefit of the machinery which the law gives – the verdict of a jury – for ascertaining the meaning, and it must now be taken to have been conclusively settled, that the writer of the criticism has imputed to the plaintiffs that the story of their play turns in its main incident upon an adulterous wife, and in such a way as not to lead any one to suppose that the plaintiffs objected to the adultery, but, on the contrary, that they had treated the adultery as a spicy incident in the play without expressing any opinion as to its morality. It has been admitted by the defendant that the play does not in fact contain any adulterous wife, that there is no incident of adultery in it, and therefore it is not open to the suggestion that the plaintiffs have treated adultery lightly in such a way as to tend to immorality. These are the facts.

What then is the law applicable to them? We must see, first, what is the question which ought to have been left to the jury on this assumption of the meaning of the article, and then whether it was in fact left to them, and whether there was any miscarriage on their part. I take precisely the same view as the Master of the Rolls with regard to the way in which the word “privilege” ought to be used. The present case is not, strictly speaking, one of “privileged occasion.” In a legal sense that term is used with reference to a case in which one or more members of the public are clothed with a greater immunity than the rest. But in the present case we are dealing with a common right of public criticism which every subject of the realm equally enjoys – the right of publishing a written criticism upon a literary work which is offered to public criticism.

It is true that a different metaphysical exposition of this common right is to be found in the judgment of Willes, J., in Henwood v. Harrison. (1) That learned judge and the majority of the Court

(1) Law Rep. 7 C. P. 606.

[*283] of Common Pleas seem to have treated this right as a branch of the general law of privilege, and to have found a justification for the use of the word “privilege” in the subject-matter of the criticism, although there is no limit of the number of the persons entitled to make the criticism. With great respect to Willes, J., I agree with the Master of the Rolls that this is not so good an exposition of the right as that which is given by Blackburn, J., and Crompton, J., in Campbell v. Spottiswoode. (1) But the question is rather academical than practical, for I do not think it would make any substantial difference in the present case which view was the right one. But, among other reasons, why I prefer the view of Blackburn, J., and Crompton, J., is this, that it leaves undisturbed the mode of directing the jury in cases of this class which has been ordinarily adopted, viz., to begin by asking them whether they think the limits of fair criticism have been passed. That implies that there is no libel if those limits are not passed. It is only when the writer goes beyond the limits of fair criticism that his criticism passes into the region of libel at all. This leaves unsettled the inquiry, and perhaps it was intended in Campbell v. Spottiswoode (1) (a case which has never been questioned) to leave it unsettled, what is the standard for the jury of “fair criticism”? The criticism is to be “fair,” that is, the expression of it is to be fair. The only limitation is upon the mode of expression. In this country a man has a right to hold any opinion he pleases, and to express his opinion, provided that he does not go beyond the limits which the law calls “fair,” and, although we cannot find in any decided case an exact and rigid definition of the word “fair,” this is because the judges have always preferred to leave the question what is “fair” to the jury. The nearest approach, I think, to an exact definition of the word “fair” is contained in the judgment of Lord Tenterden, C.J., in Macleod v. Wakley (2), where he said, “Whatever is fair, and can be reasonably said of the works of authors or of themselves, as connected with their works, is not actionable, unless it appears that, under the pretext of criticising the works, the defendant takes an opportunity of attacking the character of the author: then it will be a libel.” It must be assumed that

(1) 3 B. & S. 769.

(2) 3 C. & P. at p. 313.

[*284] a man is entitled to entertain any opinion he pleases, however wrong, exaggerated, or violent it may be, and it must be left to the jury to say whether the mode of expression exceeds the reasonable limits of fair criticism.

In the case of literary criticism it is not easy to conceive what would be outside that region, unless the writer went out of his way to make a personal attack on the character of the author of the work which he was criticising. In such a case the writer would be going beyond the limits of criticism altogether, and therefore beyond the limits of fair criticism. Campbell v. Spottiswoode (1) was a case of that kind, and there the jury were asked whether the criticism was fair, and they were told that, if it attacked the private character of the author, it would be going beyond the limits of fair criticism. Still there is another class of cases in which, as it seems to me, the writer would be travelling out of the region of fair criticism – I mean if he imputes to the author that he has written something which in fact he has not written. That would be a misdescription of the work. There is all the difference in the world between saying that you disapprove of the character of a work, and that you think it has an evil tendency, and saying that a work treats adultery cavalierly, when in fact there is no adultery at all in the story. A jury would have a right to consider the latter beyond the limits of fair criticism.

Applying the law to the present case, we have to see whether the learned judge misdirected the jury, having regard to their finding as to the true construction of the article. Their construction of the words of the article could not have been affected by what he said to them about the meaning of “fair criticism.” The alleged libel stated that the story of the plaintiffs’ play turned upon adultery. In a case of manifest misdescription such as this the judge is not bound to go into all the minutię as if the libel had been of a different character, and his summing-up must be read with reference to this fact. I have read through the summing-up of Field, J., and, though I do not think that his language was altogether exact, yet what possible harm could it have done having regard to the facts of the case? The jury had

(1) 3 B. & S. 769.

[*285] to deal with a case of positive misdescription, a question not of opinion, but of fact. Did not that fall clearly beyond the limits of fair criticism? Could this Court since the Judicature Act set aside the verdict of the jury, merely because the language of the learned judge was not exactly that which he would have used if he had written his summing-up? Assuming the interpretation the jury put on the meaning of the words to be correct, as we must assume, I entertain no doubt as to the correctness of the remainder of the verdict. And, even if the view of the law as to privilege which I do not adopt were the right view, I do not think it would make any difference in the present case, because, the misrepresentation being clear, the writer having not merely said that the play had an evil tendency, but having imputed to the authors that it was founded on adultery when there is no adultery at all in it, the jury would have inferred, if the question had been left sufficiently to them, that the writer was actuated by a malicious motive; that is to say, by some motive other than that of a pure expression of a critic’s real opinion.

Appeal dismissed.