1903

v.

WESTERN

NEWS

C. A. any rate to a new trial. It has been said in cases of this kind, e.g., Merivale v. Carson (1) and Wason v. Walter (2), that MCQUIRE what might otherwise be libellous is not so if it is "fair" comment on a matter of public interest, or "fair" criticism MORNING of a literary work or performance submitted to the public COMPANY. judgment. The question is, What is the meaning of the word "fair" in this connection? It is submitted that, on the true view of the authorities, it does not mean criticism which in the eyes of the jury is just or justifiable. If it did, the right of free criticism, which exists in the public interest, would practically be destroyed. The meaning is that what is published must be bonâ fide "criticism," that which may "fairly" be considered "criticism." The writer must not overstep the limits of criticism, and, under the guise of criticizing the production, make an attack on the personal character of the man whose production is discussed. If the writer does not transcend the limit of bonâ fide criticism, then, however severe, or even unjust in a sense, the criticism may be, the critic is entitled to express his honest opinion on a work submitted to the judgment of the public, and is not guilty of libel. The true legal doctrine on the subject is that expressed by Lord Ellenborough in the case of Carr v. Hood (3), reported in a note to Tabart v. Tipper. (4) He there said in summing up: "Every man who publishes a book commits himself to the judgment of the public, and any one may comment upon his performance. the commentator does not step aside from the work, or introduce fiction for the purpose of condemnation, he exercises a fair and legitimate right." In the course of the case he said: "We really must not cramp observations upon authors and their works. They should be liable to criticism, to exposure, and even to ridicule, if their compositions be ridiculous; otherwise the first who writes a book on any subject will maintain a monopoly of sentiment and opinion respecting it. This would tend to the perpetuity of error. Reflection on personal character is another thing. Shew me an attack on the moral character of this plaintiff, or any attack upon his

(1) (1887) 20 Q. B. D. 275.
(2) (1868) L. R. 4 Q. B. 73.

(3) (1808) 1 Camp. 354; 10 R. R. 701. (4) (1808) 1 Camp. 350; 10 R. R. 698.

If

character unconnected with his authorship, and I shall be as
ready as any judge who ever sate here to protect him; but I
cannot hear of malice on account of turning his works into
ridicule." The effect of what Lord Ellenborough said is to
lay down the broad and intelligible rule that, so long as the
matter published is bonâ fide comment on the work only, or
the author as an author, and there is no attack on the author
as a man, nor any untrue statements of fact with regard to
him or his work, there is no libel. The subsequent authori-
ties, such as Campbell v. Spottiswoode (1), are, it is submitted,
really to the same effect. Though the word "fair"
may have
been used somewhat ambiguously in relation to this subject in
some passages of judgments given in subsequent cases, and
might, if these passages are isolated from the context and the
facts of the case, be construed as meaning that criticism, if, in
the opinion of a jury, excessive or exaggerated beyond a certain
degree, may be libellous, those passages must be looked at
with reference to the facts of the particular cases in which
they were uttered; and it is submitted that the general effect
of the authorities is that, if in such a case as this the critic
does not exceed the bounds of comment or criticism, if he con-
fines himself to the merits of the work before him and honestly
states his opinion of it, there is no libel, however excessive and
exaggerated the jury may think the criticism to be. From what
Lord Esher M.R. said in Merivale v. Carson (2) at the end of
his judgment, it may be inferred that he thought the question
in such cases is whether the comment is really criticism of the
work. In the same case Bowen L.J. says: "In the case of
literary criticism it is not easy to conceive what would be
outside that region," i.e., the reasonable limits of fair criticism,
"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 criticizing." It is possible that the language of some
criticisms may be such, and may be published under such
circumstances, as to furnish evidence that the writer was not in
truth bonâ fide criticizing the work discussed, but maliciously
attacking the author personally, and then a jury might find
(1) (1863) 3 B. & S. 769.
(2) 20 Q. B. D. 275.

C. A.

1903

MCQUIRE

V.

WESTERN

MORNING

NEWS

COMPANY.

C. A.

1903

MCQUIRE

v.

WESTERN

MORNING
NEWS

that the criticism was a libel, but it is submitted that the present is not a case of that kind.

The summing-up of the learned judge amounted to a misdirection, because it contained expressions which might lead the jury to think that, if they disagreed with the criticism COMPANY. published by the defendants, and, if they thought it unjust, they ought to find it to be a libel. Therefore the defendants are entitled at least to a new trial on that ground, and on the ground that the verdict was against evidence. But, further, it is submitted that the Court should enter judgment for the defendants. Some difficulty is, no doubt, created in libel cases by Fox's Act (32 Geo. 3, c. 60); but, nevertheless, in the case of actions for libel as in other actions, there is always the preliminary question whether there is any evidence of a cause of action for the jury. It has always been held, for instance, that, though the question of libel or no libel is for the jury, it is for the judge to say whether the matter complained of is capable of being a libel, and, if he thinks it is not, he may withdraw the case from the jury. The present case is, no doubt, somewhat different from those in which the question arises merely on the construction of the document alleged to be a libel; because, in order to determine whether the document complained of here is capable of being a libel, it is necessary not only to construe it, but also to ascertain the circumstances under which it was published. But it is contended that, when the whole of the evidence has been given in a case of this kind, then, if the judge is of opinion that there is no evidence of anything beyond bonâ fide criticism of a work submitted to the public judgment, he ought either to withdraw the case from the jury, or to direct them to give a verdict for the defendants. Expressions have sometimes been used importing that the doctrine with regard to fair comment is a branch of the doctrine of privileged communication; in which case it is for the judge to rule whether the occasion is privileged, and, if the judge rules that it is, and thinks there is no evidence of express malice, he may withdraw the case from the jury: Henwood v. Harrison. (1) It has been settled that this (1) (1872) L. R. 7 C. P. 606."

mode of looking at such cases is technically erroneous, and that the defence in such cases is that the words are not really defamatory, fair criticism being no libel: see Campbell v. Spottiswoode. (1) But the distinction is really somewhat academic see per Bowen L.J. in Merivale v. Carson (2); and the defendants cannot stand in a worse position than if the question were one of privileged communication. Assuming that, technically, the facts did raise the question whether the matter complained of was a libel or not for the jury, if the total result of the evidence was such that, however often a jury might find that there was a libel, the Court ought to set aside the verdict as against evidence, then under Order XL., r. 10, the Court ought to give judgment for the defendants.

[They also cited Paris v. Levy (3); Macleod v. Wakley. (4)] Clavell Salter, for the plaintiff. The question in this case was eminently one for the jury, and they were entitled to decide it as they did. Taking the summing-up of the learned judge as a whole, there was no misdirection; and, even if there was, at the utmost the result can only be that there ought to be a new trial. There is, it is believed, no reported case in which the question whether a comment was fair was withdrawn from the jury. The result of the argument for the defendants is that the right of comment or criticism in such a case as this is practically unlimited, and however violent or immoderate, however unfounded and unjustifiable a comment or criticism may be, it cannot be libellous unless the character of the author, apart from his work, is attacked, or false statements of fact are made concerning him. The argument

comes to this, that comment is not libel, whether fair or unfair. According to this view, there is no such thing as unfair criticism for this purpose. If the matter complained of is merely comment, it is fair comment and therefore not libel. It is submitted that the authorities do not bear out this view, which really gives the go-by to the proper meaning of the expression "fair comment," the expression which has been almost universally used in all the modern cases on the (1) 3 B. & S. 769.

(2) 20 Q. B. D. 275, at p. 283.

(3) (1860) 9 C. B. (N.S.) 342.
(4) (1828) 3 C. & P. 311; 33 R. R. 663.

C. A.

1903

MCQUIRE

บ.

WESTERN

MORNING

NEWS COMPANY.

C. A. 1903

v.

WESTERN
MORNING

NEWS

subject. In Merivale v. Carson (1) Lord Esher M.R. said: "What is the meaning of a 'fair comment'? I think the MCQUIRE 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 COMPANY. 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 would be 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 circumstances of the particular case." It is impossible to treat this language as merely equivalent to saying that the question is whether the article goes beyond what may fairly be considered comment. Bowen L.J. said in Merivale v. Carson (2) that the proper mode of directing the jury in cases of this kind is "to begin by asking them whether they think the limits of fair criticism have been passed." He goes on to say: "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 (3) (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. (2) 20 Q. B. D. 275, at p. 283.

(1) 20 Q. B. D. 275, at p. 280.

(3) 3 B. & S. 769.