A malicious publication by writing, printing, picture, effigy, sign, or otherwise than by mere speech, which exposes any living person, or the memory of any person deceased, to hatred, contempt, ridicule, or obloquy, or which causes or tends to cause any person to be ashamed or avoided, or which has a tendency to injure any person, corporation, or association of persons, in his, her, or its business or occupation. The use of the word libel, as relating to defamatory writings, seems to have originated early in the sixteenth century. Such a writing then became known as a libellus famosus, 1. a scurrilous or defamatory pamphlet. Since the earliest ages every civilized community has provided for the protection of the citizen from defamation of character, and practically the same theories of redress and penalties as exist to-day were held under the very ancient laws. The Mosaic law provided penalties for the offence (Ex., xxiii), and under the laws of Solon it was punished by a severe fine. A libel may be either a civil injury or a criminal offence. The theory upon which it is made the subject of criminal law is that it is calculated to cause a breach of the public peace. Libel differs essentially from slander, in that it may be the subject of both criminal and civil litigation, whereas slander is not a criminal offence.

Many statements may be actionable per se when written, or printed, and published, which would not be actionable if merely spoken, without claiming and proving special damage. Thus, unwritten words imputing immoral conduct are not actionable per se unless the misconduct imputed amounts to a criminal offence, for which the person slandered may be indicted. If the published matter holds a person up to public scorn, contempt, and ridicule, it is libellous per se. Libel per se embraces all cases which would be actionable if made orally, and also embraces all other cases where the additional gravity imparted to the charge by the publication can fairly be supposed to make it damaging. The nature of the charge must be such that the court can legally presume that the plaintiff has been degraded in the estimation of his acquaintances or of the public, or has suffered some loss, either to his property, character, or business, or in his domestic or social relations, in consequence of the publication of such charges. Compensation for mental suffering caused by the libel may be included in the damages recovered. In cases of libels upon the dead, although no private injury in the ordinary sense results to anyone, they are properly the subject of criminal prosecution, as being likely to cause a breach of the peace, on account of the resentment of the surviving relatives.

In criminal prosecution in Great Britain, and in many jurisdictions in America, for many years the jury have been made judges of both the law and the fact (Fox's Criminal Libel Act, 32 George III, c. 60). In such cases it is still the duty of the presiding judge to inform and instruct the jury as to the law of evidence, and to decide all questions arising in that regard.

The law of libel is not limited to injuries done to personal reputation, but also includes the protection of the reputation of property; and this form of libel is commonly called slander of title. Slander of title was actionable at common law upon proof of special damage. A claim of title made in good faith, however, and upon probable cause cannot be considered as furnishing grounds for a cause of action, but the principle sustaining this form of actionable libel is well-established. A corporation can maintain an action for libel per se when the libel necessarily and directly occasions pecuniary injury. A distinction between criticism and defamation is, that criticism deals only with such things as invite public attention or call for public comment, and does not follow a man into his private life, or pry into his domestic concerns. It never attacks the individual, but only his work. A criticism of a public man, consisting of imputations upon his motives, which arise fairly and legitimately out of his conduct, is generally regarded as justifiable.

Publication

To constitute a libel there must be a publication, as well as a writing. While a defamatory writing is not libel if it remains with the writer undelivered, yet if it goes to other hands, even inadvertently, there has been a publication. The writing must go into the hands of persons who by a knowledge of the language or of reading are able to become acquainted with its contents. In relation to criminal libel, it has been adjudged that, even if the defamatory communication has been seen by no one but the person to whom it is addressed, a case has been made out, as in such an event it is likely to cause a breach of the public peace. [Barrow v. Lewellen, Hobart's (K. B.) Reports, 62 a (152); Lyle v. Clason, 1 Cairnes (N. Y.), 581.]

Malice

It is an essential ingredient in both libel and slander that the defamation be malicious. A distinction is made between malice in fact and malice in law. In a legal sense, any act done wilfully to the prejudice and injury of another, which is unlawful, is, as against that person, malicious. The falsity of the charge establishes a presumption of malice. It is not necessary to render an act in law malicious that the party be actuated by a feeling of hatred or ill-will toward the individual, but if in pursuing a design, even if actuated by a general good purpose, he wilfully inflicts a wrong on others which is not warranted by law, such act is malicious.

Privileged Communications

A communication made to a person entitled to, or interested in, the communication, by one who is also interested in or entitled to make it, or who stood in such a relation to the former as to afford a reasonable ground for supposing his motive innocent, is presumed not to be malicious, and is called a privileged communication. To support the claim of privilege there must be something more than a social or moral duty, for, no matter how praiseworthy the motive may be, unless the circumstances are such, in the opinion of the court, as to come within the above definition, privilege cannot be successfully pleaded. Two elements must exist: not only must the occasion create the privilege, but the occasion must be made use of bona fide and without malice. Reports of proceedings in legislative assemblies and in judicial tribunals (where the published matter is pertinent to any cause of which the court has jurisdiction) are absolutely privileged.

Justification

The truth of a charge is always a justification and a complete answer to a civil proceeding for libel. In criminal proceedings it is the general rule that it must be shown in addition that the publication was for the public benefit and for justifiable ends. This has been the law in almost all of the United States for many years, and in Great Britain since 1843 (6 and 7 Victoria, c. 96). Formerly in criminal cases the truth of the charges constituting the alleged libel was no defence, the rule being embodied in the maxim, "The greater the truth the greater the libel". There was substantial reason for this theory, as it was deemed that a truthful defamatory statement was more apt to cause a breach of the public peace than one that was untrue. It is a well-established and universal fact that courts will never assume that there has been wrongdoing, and the burden in both civil and criminal litigation is upon the person making the charge to sustain it. Moreover, if the defamatory matter consists of charges involving moral turpitude, and subject to criminal prosecution, the requirements as to the proof of the truth of the same are substantially as strict as if the person claiming to have been defamed was on trial for the alleged offences.

A striking and interesting illustration of the application of this rule is to be found in the record of the case of the Queen against Newman, the defendant being Dr. (afterwards Cardinal) Newman. This was a proceeding for criminal libel instituted by Giovanni G. Achilli, who had formerly been a priest of the Catholic Church, but had been disciplined and suspended by the ecclesiastical authorities. The complainant, prior to the publication, had been delivering public addresses, attacking the Church and its institutions, and giving a wrong impression as to the circumstances connected with his suspension. Dr. Newman published a statement setting forth the facts in relation to the complainant's suspension, and making specific charges of a number of instances of sexual immorality, in one case a young girl of about fifteen years being involved. The acts charged took place on the Continent of Europe, and the persons who could have supported the statement by their testimony were beyond the jurisdiction of the English court in which the proceeding was conducted. Dr. Newman was, therefore, unable to prove the truth of the twenty-one charges made, except the one in relation to the proceedings conducted by the Church, and which was supported by documentary evidence. He had pleaded the truth of the alleged libel under the statute of Victoria. The court found him guilty and he was fined one hundred pounds.

It may be generally stated that any circumstances that would appeal to a reasonable person as being mitigating may be introduced in evidence in either criminal or civil litigation under a plea of mitigation, even including a belief in the truth of the matter, or an attempt subsequently to repair the alleged wrong by a retraction or apology.

MUNROE, English Dictionary of Historical Principles (Oxford, 1903); COOLEY, Wrongs and their Remedies, I: Torts (Chicago, 1888); New York Penal Code; Blacksione's Commentaries; WENDELL, Starkie on Slander and Libel (West Brookfield, Massachusetts, 1852).

Eugene A. Philbin.