The Law of Defamation

Round table advice for ministers continued.

By M.C. Taft

The right to the maintenance of private reputation unassailed is of an­cient origin and is necessary to human society. This is as much a Constitu­tional right as the possession of life, liberty, or property, and is within the Constitutional guaranty of personal security. The law of defamation gov­erns or controls and limits the pub­lication of that which is written or spoken touching individual reputation, and is a matter which should be fully understood, especially by men in public life, and including, of course, our min­isters. I shall endeavor to present that phase of the law pertaining to priv­ilege and qualified privilege communi­cations, and the relation of such to church discipline, citing a few court decisions substantiating what I under­stand the American law to be.

We must not confuse criticism and defamation. Criticism deals only with that which invites public attention or calls for public comment, and does not follow a public man into his private life or pry into his domestic concerns. Criticism is not concerned with the individual, but only with his work. A true critic never indulges in per­sonalities.

In order to understand what It means to come under the law of defamation, we must have some knowledge of what is contained in the terms " libel " and " slander," also what constitutes a "publication."

As to the court definition of " libel," the following is a clear statement ap­pearing in a number of court decisions:

" A libel is a malicious publication, expressed either in printing or writing, or by signs and pictures, tending either to blacken the memory of one dead, or the reputation of one who is alive, and expose him to public hatred, contempt, or ridicule."'

The definition of " slander " is stated thus:

" The speaking of base or defamatory words which tend to the prejudice of the reputation, office, trade, business, or means of getting a living of another."

Legal Distinction in Statements

Words spoken or written may be actionable in themselves as per se, or they may be actionable only on allega­tion and proof of special damage and known as per quod. This distinction is based on a rule of evidence, as follows: per se because bad in themselves; per quad must be established by proof. Words actionable pel• se must impute the guilt of some offense for which the party, if guilty, might be indicted and punished by the criminal court. As, for example, to call a person a thief.

Privilege and Qualified Privilege Communications

In the law of libel and slander there are communications both by writing and speaking which are known as " privilege " and " qualified privilege " communications, and within the past fifty years these have been much dis­cussed by courts and commentators in England and America.

The occasion upon which privilege communications are made may be classified as absolutely privileged, and those in which the privilege is quali­fied. In the class of absolute privilege, it is considered in the interest of public welfare that all persons should be al­lowed to express their sentiments and speak their minds fully and fearlessly upon all questions and subjects, and all action for words so spoken is abso­lutely forbidden, even if it were proved that such words were spoken falsely and with malice. The rule is confined, however, to cases in which the public service or the administration of justice requires complete immunity; for ex­ample, words spoken in legislative bodies in debate, or words spoken by the judge on the bench, or by witnesses on the stand.

Qualified privilege relates more par­ticularly to private interest, and com­prehends communications made in good faith without actual malice, with rea­sonable or probable grounds for be­lieving them to be true, upon a subject matter in which the author of the com­munication has an interest, or in refer­ence to which he has a duty, public, personal, or private, either legal, judi­cial, political, moral, or social, made to a person having a corresponding inter­est or duty.

Briefly stated, a qualified privilege communication is a defamatory com­munication made on what is called an occasion of privilege without actual malice. As to such communication there is no civil liability. Ordinarily the question of privilege is determined by the occasion and not the language used For example, reasonable crit­icism of one member of a society by another at a meeting of the members with respect to acts claimed to be in violation of the rules of the society, and a matter in which all members are interested, if made without malice and for the good of the society. Also a publication of report of judicial pro­ceedings is qualifiedly or conditionally privileged; but such reports must be correct. If such report is discolored or comments and insinuations are added, it is libelous.

A Publication

Under the law of libel and slander, in order to make one guilty of speaking or writing that which is considered libelous or slanderous, there must be a publication. The question as to what constitutes a publication in the law of defamation is often difficult to deter­mine. The mode of publication is im­material, but there is a difference be­tween the publication of a slander and the publication of a libel, which is dis­tinguished as follows:

The publication of a slander involves only one act by defendant. He needs only to speak the words so that some third person hears and understands them.

The publication of libel involves more than one act. The defendant must compose and write the libel and deliver it, or cause it to be delivered, or to be read aloud, to some third per­son who reads or listens to and under­stands its contents. In the last case the same act may be both a slander and a libel.


1. Libelous Letters.The writing and sending of a letter containing de­famatory matter, which was not read or exhibited to another person by the writer, is not a publication of the libel therein contained. But, according to the ruling of the supreme court of Maryland (in case of Gambrill vs. Schooley, 93 Maryland Report, 48) a letter becomes a publication in the fol­lowing manner:

" The dictation of a libelous letter by a party to his private and confi­dential stenographer, by whom a type­written copy is made and transmitted to another party after being signed by the defendant, is in law a publication of the libel, although there is no com­munication of the latter by the defend­ant to any other person."

2.  Letters of Recommendation.In case of action for libel in writing and publishing a letter containing false and derogatory statements, it is not a de­fense to maintain that the letter was written in response to a request from the party for a recommendation; neither is it a defense to hold that the letter was not known by any one but the stenographer to whom it was dic­tated, when it was libelous per se. If a person dictates such a letter to a stenographer, he is liable, because the stenographer is an individual, the same as any one else. The only way, there­fore, to write such a letter, if It must be done, is for the person to write it himself. This seems to be sound rea­soning, and was so held in 1921 by the district court of New York in the case of Nelson vs. Whitten, 272 Federal Re­port, 135, and by the supreme court of Maryland in the case of Gambrill vs. Schooley, 93 Maryland Report, 48, and by other courts.' In the Nelson vs. Whitten case the plaintiff wrote the de­fendant, asking for a recommendation, and the defendant's reply was held libelous, which read as follows:

" I am so much in doubt as to your loyalty and integrity that I could not conscientiously give you a recommendation to any one desiring to em­ploy you."

However, there are some holdings making exceptions to this rule in cases where the dictation is by an officer of the corporation employed by it, but such holdings seem to be in the minor­ity and are criticized by other courts. The minority holdings say that com­munications between officers of a cor­poration or between different branches of the same corporation in the course of corporate business, are not publica­tions to third persons by the corpora­tion' The courts that have adopted the minority rule maintain that the dic­tation, writing, and copying were but parts of one act of corporation, and as two servants were required to partici­pate in it, there was no publication. As only a few courts have taken this position, it is unsafe to follow minority holdings. A corporation may be liable for slander committed by its employee while acting within the scope of his employment and the actual perform­ance of duties touching the matter in question.'

3.  Private Communications.A com­munication between private persons is privileged according to the following specifications:

a. Where the person making it has an interest to protect or duty to per­form.

b. When his relation to the party to whom it is made is of a confidential nature.

c. If made in good faith and in the belief that it is true.

d. With no malevolent motive.

e. For the purpose of promoting or protecting his interest.

f. In the performance of a duty incumbent upon him, social, legal, or moral, and is justified or required by the nature of the relations existing be­tween him and the person to whom it is made, and does not go beyond what is fairly warranted by the occasion.

The rule making privilege communi­cations in response to inquiries by in­terested persons, applies to answers made to inquiries by a person inter­ested in plaintiff's behalf, as, for in­stance, a parent, brother, or brother-in-law. This rule has been followed and has been so held by some of our courts. The principle underlying these cases is that statements made in response to an inquiry and investigation by the parent of a slander against a child who is under his care and protection, are privileged.' But even though this is the law, a person will not be justified in making a communication merely be­cause it is in response to the inquiry of a stranger, or even of a friend of the plaintiff.

4. Voluntary Communications.—

a. To Parent: If a voluntary state­ment is made by a party to a parent, not in response to an inquiry from the parent, it would not be privileged.

b. To Strangers: The authorities are conflicting as to the responsibility of a stranger voluntarily making a commu­nication to another where there is no common interest in the subject matter, and the interest is confined solely to the party receiving the communica­tion' For example, a person may hon­estly believe that his neighbor is not entitled to credit on oath, but he is not justified in publishing it to the world, however honest he may be in that be­lief. As a general rule, it is not neces­sary that a communication, to be priv­ileged, should be given in answer to an inquiry.'

c. To Qualified Parties: It has been held by the court (Fresh vs. Cutter, 73 Maryland Report, 87-97) that a vol­untary communication made by one having an interest or duty in the sub­ject matter thereof to one having a corresponding interest or duty, may be privileged, if made in good faith and without malice. The application of this rule is as follows: If you were intending to employ John Doe, who had previously been employed by me, and who, I believed, had stolen from me while in my employ, it would be a privilege communication for me to tell you what I believed to be the truth about him. But in a case of this kind, there must exist an interest or a duty, a proper occasion, the use of the occa­sion in good faith and without malice, and an honest belief in the truth of the statement. It is also essential that the information be given to one who is entitled to receive it, and not to any and every one.

We must be careful in expressing our views regarding the qualification of any one, and in our criticism of that person, to guard ourselves as to what we say in reference to that person's disqualifications. In our letters, also, we must be guarded. A letter from an employer to another person, stating things that show the inefficiency of the person employed, may be termed a libelous letter and the writer become liable therefor. One may have the priv­ilege and protection of the law in mak­ing certain communications relative to the qualities or character of another; but if he abuses that occasion, and goes beyond what is required or proper in his statements relating to that person, the occasion will not protect him, and he is liable. The communication must be made in good faith.9

5. Repeating What Others Have Said. It is no defense to an action for slan­der to prove the defendant only re­peated the charge made by another, if he does so knowing it to be untrue and with a desire to injure the person slan­dered. A repetition of oral slander al­ready in circulation, without express­ing any disbelief of it or any purpose of inquiring as to its truth, though without any design to extend its cir­culation or credit, or to cause the per­son to whom it is addressed to believe or suspect it to be true, is nevertheless actionable."

Takoma Park, D. C.

(To be continued)

1 Sec. 31 American Decisions, 766 ; 4 Mas­sachusetts Report, 163 ; 80 Missouri Report, 558 ; 152 Pennsylvania State Report, 187 ; 129 Alabama Report, 349 ; 28 Kansas Report, 426 ; 2 Tyler (Vt.), 129 ; 6 Vermont Report, 489.

2 Christopher vs. Akin, 214 Mass. Report, 332 ; Madill vs. Currie, 168 Mich. Report, 546 ; Everest vs. McKenney, 195 Mich. Re­port, 649.

3 Ferdon vs. Dickens, (1909) 161 Alabama, 181 ; Lawyers' Reports Annotated (1918F), 568.

4 5 American Law Report, 451 (1919) ; 113 Mississippi, 351 (1917).

5 Sawyer vs. Railroad, 142 N. C. ; 1, 115 Am. St. Report, 716 ; Rivers vs. Railroad Co., 90 Miss., 196.

6 Long vs. Peters, 47 Iowa Report, 239 ; Rude vs. Nass, 24 American State Reports, 718 ; Moore vs. Butler, 48 New Hampshire, 161 ; Fresh vs. Cutter, 73 Maryland, 87 ; Rosenbaum vs. Roche, 46 Texas Civil Ap­peal, 237 ; 101 Southwestern, 1163.

7 Mix vs. Caldwell, 81 Kentucky Report, 293.

8 Mortin vs. Knipe, 128 Appellate Division, 94 ; 112 New York S., 451, Missouri Pacific Railroad Company vs. Richmond, 73 Texas Report, 568.

9 Steamboat Company vs. Davis, 12 Appeal Case (D. C.) 306 'Middleby vs. Miler, 118 Federal Report, 261 ; 97 Mississippi Report, 669 •, 222 Missouri Report, 556 ; 107 Missouri Appeal, 217 ; 84 New Jersey Law Report, 486 ; 49 New Jersey Law Report, 417.

10 Kennedy vs. McLaughlin, 5 Cray (Mass.), 3.

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By M.C. Taft

February 1929

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