C. A. 1903 V. WESTERN MORNING NEWS COMPANY. in Macleod v. Wakley (1), 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, MCQUIRE unless it appears that, under the pretext of criticizing 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 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." It is submitted that what Bowen L.J. there said is wholly inconsistent with the construction which the defendants' counsel seek to put on the word "fair" in this connection. If that construction be right, then the mode in which Bowen L.J. says the question is always left to the jury in such cases, and in which Ridley J. substantially left it to them in this case, would be most misleading. What the Lord Justice says, and the passage quoted from Lord Tenterden's judgment, both involve that the question is whether the mode of expression is so wrong, exaggerated, or violent as to exceed the reasonable limits of fair criticism. The judgment of Cockburn C.J. in Wason v. Walter (2) is to the same effect. After stating that the Court are of opinion that the direction given to the jury was correct, he says: "The jury were told that they must be satisfied that the article was an honest and fair comment on the facts-in other words that, in the first place, they must be satisfied that the comments had been made with an honest belief in their justice, but that this was not enough, inasmuch as such belief might originate in the blindness of party zeal, or in personal or political aversion; that a person taking upon himself publicly to criticize and to condemn the conduct or motives of another, must bring to the task, not only an honest sense of justice, but also a reasonable degree of judgment and moderation, so that the result may be what a jury shall deem, under the circumstances of the case, a fair and legitimate criticism on the conduct and motives of the party who is the object of censure." That passage is wholly inconsistent with (1) 3 C. & P. 311, at p. 313; 33 R. R. 668. (2) L. R. 4 Q. B. 73, at p. 96. C. A. 1903 MCQUIRE v. the suggestion that the only question in such cases is whether the matter complained of is really criticism or goes beyond it. It is submitted that the question was one for the jury, and that there is no ground for setting aside their verdict: at any rate the Court cannot enter judgment for the defendants. COMPANY. The matter published was primâ facie libellous, and it was for the defendants to satisfy the jury that it was not libellous because fair criticism. [He also cited South Hetton Coal Co. v. North Eastern News Association. (1)] WESTERN NEWS Duke, K.C., for the defendants, in reply. In South Hetton Coal Co. v. North Eastern News Association (1) it would appear that the article went beyond mere comment, and contained misstatements of fact: see the judgment of Kay L.J. on p. 148 of the report in the Law Reports. Cur. adv. vult. May 11. COLLINS M.R. read the following judgment:-This is an application by the defendants for a new trial or judgment in an action for libel tried before Ridley J. The plaintiff is an author and actor, and the action is founded upon a notice which appeared in the defendants' newspaper of a musical play written and composed by the plaintiff and produced by a company under his management at the principal theatre in Plymouth. The plaintiff himself acted a part in the play. The notice complained of was as follows: [The learned judge read the alleged libel as set out above.] It appears on the face of the statement of claim that the notice complained of was a dramatic criticism of a play publicly acted; and therefore it could not be, and was not, contended for the plaintiff that there was any libel unless the criticism exceeded the bounds of "fair comment." It was not suggested that there was any evidence of actual malice, there were no personal imputations, nor could any statement of fact be impugned. The innuendo set out in the claim does not charge any misstatement of fact, but confines itself to matters of opinion only. It is as follows: "By the said words the defendants meant, and were understood to mean, and the meaning of the (1) [1894] 1 Q. B. 133. C. A. 1903 MCQUIRE V. WESTERN NEWS COMPANY. said words is that the said play was dull, vulgar, and degrading, that the members of the plaintiff's company were incompetent as actors, singers, and dancers, that they were music-hall artistes, and that the plaintiff was himself incompetent both as an actor and composer as aforesaid." The plaintiff, however, contended that the notice, though comment, was not 'fair comment"; and the jury apparently adopted this view, Collins M.R. and found for the plaintiff, with 1007. damages. The defendants challenge the verdict on the ground of misdirection, and also as being against the weight of evidence; but they rested their case mainly on the ground that on the facts admitted and proved it was competent for the Court itself, notwithstanding the verdict of the jury, to enter judgment for the defendants. This raises a very important question as to what are the limits of "fair comment" on a literary work, and as to what are the respective provinces of the judge and jury with respect thereto. One thing, however, is perfectly clear, and that is that the jury have no right to substitute their own opinion of the literary merits of the work for that of the critic, or to try the "fairness" of the criticism by any such standard. "Fair," therefore, in this collocation certainly does not mean that which the ordinary reasonable man, "the man on the Clapham omnibus," as Lord Bowen phrased it, the juryman common or special, would think a correct appreciation of the work; and it is of the highest importance to the community that the critic should be saved from any such possibility. In principle, therefore, there would be nothing to leave to the jury unless there was some element in the criticism which might support an inference of unfairness in some other sense, No doubt this element might be, and has been, described in various ways and different instances of it given; but, broadly, I think Mr. Duke is right in contending that, in the case of a literary work at all events, it is something that passes out of the domain of criticism itself. Criticism cannot be used as a cloak for mere invective, nor for personal imputations not arising out of the subjectmatter or not based on fact. "If," says Lord Ellenborough in Carr v. Hood (1), reported in a note to Tabart v. Tipper (2), (1) 1 Camp. 354; 10 R. R. 701. (2) 1 Camp. 350; 10 R. R. 698. C. A. 1903 V. WESTERN "the commentator does not step aside from the work or introduce fiction for the purpose of condemnation he exercises a fair MCQUIRE and legitimate right . . . . Had the party writing the criticism followed the plaintiff into domestic life for the purposes of MORNING slander that would have been libellous "; and, in another COMPANY. passage: "Shew me an attack on the moral character of this Collins M.R. plaintiff, or any attack upon his character unconnected with his authorship, and I shall be as ready as any judge who ever sate here to protect him." In Merivale v. Carson (1) Bowen L.J. says: "In the case of literary criticism it is not easy to conceive what would be outside that region "-i.e., of fair comment NEWS "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. In such a case the writer would be going beyond the limits of criticism altogether, and therefore 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." I think "fair" embraces the meaning of honest and also of relevancy. The view expressed must be honest and must be such as can fairly be called criticism. I am aware that the word "moderate" has been used in this connection-Wason v. Walter (2)-with reference to comment on the conduct of a public man; but I think it is only used to express the idea that invective is not criticism. It certainly cannot mean moderate in the sense that that which is deemed by a jury, in the case of a literary criticism, extravagant and the outcome of prejudice on the part of an honest writer is necessarily beyond the limit of fair comment: see Merivale v. Carson. (3) No doubt in most cases of this class there are expressions in the impugned document capable of being interpreted as falling outside the limit of honest criticism, and, therefore, it is proper to leave the question to the jury, and in all cases where there may be a doubt it may be convenient to take the opinion of a jury. But (1) 20 Q. B. D. 275, at p. 284. (2) L. R. 4 Q. B. 73, at p. 96. (3) 20 Q. B. D. 275. C. A. 1903 MCQUIRE v. WESTERN it is always for the judge to say whether the document is capable in law of being a libel. It is, however, for the plaintiff, who rests his claim upon a document which on his own statement purports to be a criticism of a matter of public interest, to shew that it is a libel-i.e., that it travels beyond the limit of fair criticism; and therefore it must be for the judge to say whether it is reasonably capable of being so interpreted. If it Collins M.R. is not, there is no question for the jury, and it would be competent for him to give judgment for the defendant. In Henwood v. Harrison (1) the action was against the Queen's printer, who, under the direction of the Lords of the Admiralty, had printed a Blue-book containing a letter defamatory of the plaintiff and had sold copies of the same in ordinary course. The defence was that the letter was a fair comment on a matter of public importance. It was admitted that the defendant acted bonâ fide and without malice. Brett J. nonsuited the plaintiff, and the Court of Common Pleas, Grove J. dissenting, upheld the nonsuit. Willes J., who delivered the judgment of the majority, says (2): "In actions of libel, as in other cases where questions of fact, when they arise, are to be decided by the jury, it is for the Court first to determine whether there is any evidence upon which a rational verdict for the affirmant can be founded." In that case, as in this, actual malice was not suggested, but the plaintiff nevertheless insisted that there was a question for the jury, and the ground of the nonsuit, which was upheld, was that the publication was "in the nature of fair criticism of a proposal affecting a matter of great national importance." That case, therefore, in its actual decision is directly in point. The decision, so far as I know, has never been questioned, though exception has been taken to the use of the word "privilege" to describe the public right of fair comment, and some eminent judges have preferred not to use a word which, according to its technical etymology, denotes the special right of an individual, as extending to cover the common rights of the whole community at large. In Merivale v. Carson (3) Bowen L.J. treats this difference of view as one rather (2) L. R. 7 C. P. at p. 628. (3) 20 Q. B. D. 275, at p. 282. (1) L. R. 7 C. P. 606. |