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.
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.