A LIBEL MAY BE PRIVILEGED
In addition to the defence of absolute privilege which was mentioned in the last article, the law allows a qualified privilege to be set up when the statement complained of was reasonably necessary in the circumstances. Any communication made to a person to whom you owe a legal, moral or social duty will be exempt fram action for libel unless express malice can be proved against you. The whole question depends on the duty owed and the words " moral or social" have been very widely interpreted by the Courts. For instance, where a valet in the employ of H. M. Stanley, the explorer, was staying with his master in the Mayor of Newcastle's house, and the Chief Constable of Newcastle, hearing that the valet was suspected of theft, told the Mayor, who informed Mr. Stanley, it was held that the Mayor was under a social duty to inform his guest and that the occasion was therefore privileged.
Servant's References
A very frequent example of this common duty and interest arises in the case of a servant's reference or " character." There is obviously a social duty and interest to inform a prospective employer of the servant's true character and in the absence of malice such communications, whether given at the request of the new employer or merely volunteered, will be privileged. You must not, however, abuse this privilege by defaming in the reference some third person, for the duty only arises in respect of the servant in question, and if you libel some other servant you will not be protected.
Malice Destroys Privilege
Malice will always destroy qualified privilege and malice here means not merely spite or ill-will but some wrong motive, e.g., to punish the servant for leaving you. If I make an out and out false statement this is undoubtedly malicious and if my communication is couched in strong terms, although not of itself malicious, it is very strong evidence of a wrong feeling in my mind. This evidence will be strengthened if my statement is volunteered, i.e., if instead of waiting for a request for a servant's reference, I hasten to inform the prospective employer of my ex-servant's character. In such a case malice would be quickly presumed by the Court.
In connection with qualified privilege it is necessary to mention that newspaper reports of judicial proceedings not published contemporaneously with those proceedings are within the rule — only by showing malice can damages be recovered. Reports of local government proceedings are also included if the matter is for the public interest and publication is for the public benefit, while all fair and accurate reports of parliamentary proceedings enjoy a qualified privilege.
F. J. M.
[This series of articles began in our issue for August 7, 1936, and will continue fortnightly. Why not cut each one out and paste it in an exercise book ? You will then possess in time a complete compendium of the law as it affects you. The series is written by an expert lawyer.—EDITOR.]