Defamation Law PDF

06 kutner 4e final 3/1/13 1:53 PM Page 491 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. Chapter 6 Defamation Section 1. Defamatory Communications A. Defamatory Meanings ————— Denny v. Mertz Supreme Court of Wisconsin 84 Wis. 2d 654, 267 N.W.2d 304 (1978) DAY, Justice.... [Plai...

06 kutner 4e final 3/1/13 1:53 PM Page 491 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. Chapter 6 Defamation Section 1. Defamatory Communications A. Defamatory Meanings ————— Denny v. Mertz Supreme Court of Wisconsin 84 Wis. 2d 654, 267 N.W.2d 304 (1978) DAY, Justice.... [Plaintiff Denny was employed by Koehring Company in 1954. In 1969, when he was senior staff attorney, he resigned to go into the private practice of law. Defendant Mertz was employed by Koehring in various executive positions until December 1975, when he was terminated as chief executive officer. Mertz attributed the termination to recent shareholder controversies that focused on senior management. Various shareholders, including Denny, had been openly critical to Koehring’s board of directors about Mertz’s performance as chief executive. In January 1976, Business Week magazine published an article, entitled “Top Management Ferment At Koehring,” about the change in management of the company. Among other things, the article stated that “Mertz now claims he was the target of a ‘harassment campaign’ by the dissidents, who include the company’s largest individual shareholder, a former chairman deposed by Mertz 16 months ago, and a former general counsel.... [¶] Also about that time, William Denny, general counsel of Koehring until Mertz fired him in 1969, began to question many of Koehring’s management decisions. He even sued the company twice to get minutes of meetings and other information....” The rest of the article stated how a group of Koehring minority shareholders, including Denny, tried to force Mertz’s resignation. The article related Mertz’s actions as Koehring chief executive and implied that he was responsible for low management morale and the company’s poor performance in recent years.] [Denny brought a libel action against Mertz and the publisher of Business Week, McGraw-Hill. Denny alleged that Mertz defamed him by telling the Business Week interviewer that he (Mertz) fired Denny. McGraw-Hill allegedly defamed Denny by stating in Business Week that Denny had been fired. Damage to his reputation in the amount of $500,000 was claimed. Mertz and McGraw-Hill appealed from the trial judge’s denial of their motions to dismiss the complaint.]... [In Lathan v. Journal Co., 30 Wis. 2d 146, 140 N.W.2d 417 (1966), we stated:] 491 06 kutner 4e final 3/1/13 1:53 PM Page 492 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 492 6 · DEFAMATION Defamation has been defined as: “that which tends to injure ‘reputation’ in the popular sense; to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse, derogatory or unpleasant feelings or opinions against him.” Prosser [Law of Torts (3d ed.)] page 756. In Scofield v. Milwaukee Free Press Co. (1905), 126 Wis. 81, 105 N.W. 227, we held that for a newspaper article to be libelous it “... need only tend to degrade or disgrace the plaintiff generally, or to subject him to public distrust, ridicule, or contempt in the community....” The Restatement, sec. 559, provides that: “A communication is defamatory if it tends so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.” [In Schaefer v. State Bar, 77 Wis. 2d 120, 252 N.W.2d 343 (1977), we stated:] “If the alleged communication is capable of a defamatory meaning, the demurrer must be overruled; and if the language is of such a character that it is capable of a non-defamatory meaning as well as a defamatory meaning, then a jury question is presented whether such communication was understood in fact in a defamatory sense by the persons to whom it was published. If the communication cannot reasonably be considered defamatory or to be so understood, the demurrer must be sustained.” The words alleged to be libelous “are to be construed and taken in their plain and popular sense....” Pandow v. Eichstad, 90 Wis. 298, 63 N.W. 284 (1895). Words or elements in an article may not be considered in isolation, but must be viewed in the context of the whole article to determine if they are defamatory. Mr. Mertz and McGraw-Hill argue that “firing” is a neutral term and no defamatory meaning can be concluded. However, in previous cases this court has determined that a fact question arose in libel cases where more than one meaning for a word was possible. In Lathan v. Journal Co., Reverend Lathan, the pastor of a large Baptist church in Milwaukee, sued for libel because of a newspaper article that implied that he was responsible for the non-appearance of the Rev. Martin Luther King, Jr. at a fund raising rally in Milwaukee. This court stated that, “A newspaper article that could reasonably be construed to reflect on his [Rev. Lathan’s] administrative ability might well have tended to lower him in the esteem of the community.” In Wozniak v. Local 1111 of U.E., 57 Wis. 2d 725, 205 N.W.2d 369 (1973) the defendant union circulated leaflets to plaintiff ’s neighbors. The leaflets referred to plaintiff as a scab. On motions before and after verdict the union contended that “scab” was capable of only one meaning. On appeal, this court held that a jury question was presented. That question was whether the use of the word “scab” communicated to the neighbors the idea that plaintiff was a scoundrel, or merely the idea that plaintiff had chosen not to participate in the strike.... The defendants contend that the statement that plaintiff was fired could carry no bad connotations that would harm plaintiff ’s reputation in the community.... The Business Week article gave no reasons for the firing. It does not say that the firing was for incompetence or cause or for any particular reason at all. The defendants also argue that the article as a whole tends to vindicate the plaintiff. The article is much more critical of defendant Mertz than it is of the plaintiff. The plaintiff is mentioned as a member of a group of dissidents who questioned Mertz’s bad management decisions and who were successful in a rare example of corporate democracy. The major portion of the article certainly does not defame plaintiff, but there is nothing 06 kutner 4e final 3/1/13 1:53 PM Page 493 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 493 in the article to suggest that the plaintiff was fired for questioning Mertz’s decisions. Such a conclusion might be implied from the article, but then again it might not. The parties agree that to fire means to discharge from employment peremptorily or summarily. Both the statement that plaintiff was fired and the article as a whole could be understood by reasonable people in a defamatory sense. Reasonable people could conclude that a person’s being fired would tend to injure their reputation in the popular sense or to diminish the respect or esteem that people have for him. Whether the article would actually have that effect is a question for the jury. We only hold that this complaint is not legally insufficient to state a claim. Order affirmed. Notes 1. The legal history of defamation long predates its entry into tort law. As related in Lovell, The “Reception” of Defamation By the Common Law, 15 Vand. L. Rev. 1051 (1962), early English canon law afforded a person aggrieved by defamation the opportunity to seek vindication of his character in the local courts. If proof by compurgation or ordeal went in his favor, he would be entitled to a public apology from the person who made the false allegation. Under the laws of Alfred the Great (compiled about the year 880), “public slander” was to be “compensated with no lighter penalty than the cutting off of [the slanderer’s] tongue, with the proviso that it be redeemed at no cheaper rate than it is valued in proportion to the wergild” (the value of the person’s life). Both the Church and the monarch sought to maintain public order by providing an alternative to acts of revenge or efforts to preserve “honor” by use of arms, but this was ineffectual. William the Conqueror placed the administration of the remedy for defamation in ecclesiastical courts, which developed a more sophisticated jurisprudence. Canon law considered defamation to be a sin. It demanded penance of the sinner, not compensation to the injured person. Thus, when a person was found guilty of defamation, he was to acknowledge his “false witness” and beg the pardon of the victim. Then, he received absolution. Canon law treated as defamatory only allegations of a crime cognizable by it. The statement had to be made to a third party, i.e. “published.” Truth was a defense, as one did not commit the sin of false witness by making a true defamatory allegation. Concern about criticism of government policies, as well as duels that were used to settle defamation grievances, led to the use of criminal law to suppress defamation of high officials and the nobility. It fell to the Court of Star Chamber to administer this “libel” law. The Star Chamber was principally concerned with handwritten and (after the development of the printing press) printed defamation of a seditious (political) nature. But its work also extended to non-political defamation, and it could order the defamer to pay the aggrieved party substantial damages, the amount depending upon the degree of insult. The possibility of receiving payment and the absence of defenses, including truth, naturally encouraged defamed persons to turn from the ecclesiastical courts to the Star Chamber for redress. It was not until the sixteenth century that common law courts began to exercise jurisdiction over defamation — primarily over oral slanders, since a remedy for written libels could be obtained through the Star Chamber. A slander would be within the cognizance of the common law courts, it was declared, if the plaintiff had been accused of a crime indictable at common law and if it was pleaded and proved that temporal damages resulted. Soon, other types of slander were accepted as a foundation for a civil action. Slanders became 06 kutner 4e final 3/1/13 1:53 PM Page 494 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 494 6 · DEFAMATION actionable by way of an action on the case when damages were alleged and proved. Slander actions became so numerous that courts attempted to deter them by such means as the “mitior sensus” doctrine, discussed in note 3. However, the damages requirements of the action on the case were relaxed for types of slander that in modern law are known as “slander per se.” See pp. 533–542, infra. The abolition of the Star Chamber in 1641 required that cases of libel henceforth be brought before the courts of common law, the ecclesiastical courts now being moribund. Rather than develop a single body of law for both written and oral defamation, the courts sharpened the division between the two, applying to written defamation doctrines derived from the Star Chamber with no requirement of “special damage” in civil actions. In part this was motivated by a continuing desire to suppress seditious libel. For oral defamation, the pre-existing rules of slander liability were applied. Today, the tort rules for libel and slander are the same in many respects, including the position of truth as an absolute bar to liability. But they differ in some important particulars, and the division of defamation into libel and slander remains a feature of contemporary law. This is considered further in pp. 533–542, infra. Privileges and other important elements of modern defamation law had not been delineated when the common law was brought to what is now the United States. Americans tended to enforce defamation law less rigorously than their English counterparts, perhaps because of the “rough-and-tumble” atmosphere of American society, less certainty that not bringing suit would be taken as an admission of the defamatory statement’s truth, and the greater opportunities to overcome damage to reputation through social or geographic mobility. See Chafee, Government and Mass Communications 106–107 (1947), and the trial judge’s remarks in Lewis v. Williams, 105 S.C. 165, 89 S.E. 647 (1916). But the American law of libel and slander remained generally consistent with the defamation law of other common law countries until 1964, when the Supreme Court of the United States decided that the First Amendment to the Constitution required that liability for defamation of a public official be severely restricted. Since then, a series of Supreme Court decisions and numerous cases from other courts have interpreted the First Amendment to place substantial restrictions upon liability for defamation and the damages recoverable. See pp. 626–684, infra. The right to have a jury determine the factual issues bearing upon liability, such as whether defendant’s statement conveyed a defamatory meaning, also has constitutional dimensions in the United States. But it should be noted that foreign jurisdictions, such as England, which have largely abolished trial by jury in other types of civil cases, have preserved it in cases of libel and slander. Why do this? 2. In Parmiter v. Coupland, (1840) 6 M. & W. 105, 151 Eng. Rep. 340, 4 Jur. 701, 9 L.J. Ex. 202 (Ex.), Baron Parke stated that “A publication, without justification or excuse, which is calculated to injure the reputation of another, by exposing him to hatred, contempt, or ridicule, is a libel.” This is the basis of an oft-stated definition of defamation as a communication “which tends to hold the plaintiff up to hatred, contempt or ridicule, or cause him to be shunned or avoided.” See Prosser & Keeton, Law of Torts 773 (5th ed. 1984). Sometimes the definition is expanded, as in Kimmerle v. New York Evening Journal, Inc., 262 N.Y. 99, 186 N.E. 217 (1933): “words which tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society.” Most modern authorities in the United States are in accord with the wider, more generally stated, definitions of Prosser and the Restatement, quoted in the principal case. See Dobbs, 06 kutner 4e final 3/1/13 1:53 PM Page 495 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 495 Law of Torts 1126–1134 (2000), and Prosser & Keeton, Law of Torts 773–778 (5th ed. 1984), for detail on what meanings are defamatory. 3. At one time, courts applied the rule that if more than one meaning could possibly be attributed to allegedly slanderous words, the words were to be construed “in mitiori sensu” — in the more favorable or lenient sense, the one not defamatory or the one less injurious. See Spencer Bower, Actionable Defamation 302–305 (2d ed. 1923). Thus, in Miles v. Jacob, (1614) Hob. 6, 80 Eng. Rep. 156, sub. nom. Jacob v. Mills, Cro. Jac. 343, 79 Eng. Rep. 293 (Ex. Ch.), an accusation that plaintiff had poisoned a person was held not to support an action, for it did not appear in the words that plaintiff had poisoned the victim willingly or that the victim was dead at the time the words were spoken. See also Holt v. Astgrigg, (1608) Cro. Jac. 184, 79 Eng. Rep. 161 (K.B.), in which defendant allegedly said that plaintiff “struck his cook on the head with a cleaver, and cleaved his head; the one part lay on the one shoulder, and another part on the other.” The court granted defendant judgment, for “notwithstanding such wounding, the party may yet be living; and it is then but a trespass.” The mitior sensus doctrine was not applied to libel. It has now been almost universally discarded. See MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 343 P.2d 36 (1959). Instead, plaintiff ’s action is subject to the test of whether the words are reasonably susceptible of any defamatory meaning. Defamation can occur by implication as well as by direct statement. See Annot., Libel and Slander: Defamation by Question, 53 A.L.R.4th 450 (1987); Spiegel, Defamation by Implication — In the Confidential Manner, 29 S. Cal. L. Rev. 306 (1965). 4. Not all personal criticisms or embarrassments are defamatory. In Cowan v. Time Inc., 41 Misc. 2d 198, 245 N.Y.S.2d 723 (Sup. Ct. 1963), a picture of plaintiff at the tiller of a small boat, in which there were four other persons, was published above the caption “Ruba-dub dub, too many in a tub.” It accompanied an article entitled “Some Idiots Afloat.” The court held that plaintiff was at most charged with a single act of carelessness and the words were not subject to any reasonable interpretation that would make them defamatory. See also Twiggar v. Ossining Printing & Publishing Co., 161 App. Div. 718, 146 N.Y.S. 529 (1914), appeal dismissed, 220 N.Y. 716, 116 N.E. 1080 (1917) (distinguishing between imputation of professional’s ignorance or want of skill in particular instance and imputation of general unskillfulness or ignorance in calling); Tracy v. New York Magazine, 3 Media L. Rptr. 2294 (N.Y. Sup. Ct. 1978) (not defamatory to report that only distinction of plaintiff’s career as New York City mounted policeman was to fall asleep in railroad boxcar and wake up, with his horse, in Schenectady). Suppose it is said that a person is “heartily detested” by his professional colleagues? See Murphy v. LaMarsh, 2 W.W.R. 196, (1970) 18 D.L.R.3d 208 (B.C.C.A.). A statement that a person does not pay his debts is likely not defamatory when the person does not conduct a business and there is no implication that he refuses to discharge valid obligations. See Annot., Libel: Imputing Credit Unworthiness to Nontrader, 99 A.L.R.2d 700 (1965). On the possibility of a defamation claim for a statement that plaintiff breached a contract, see Annot., Libel and Slander: Charging One with Breach or Nonperformance of Contract, 45 A.L.R.5th 739 (1997). 5. Words of abuse directed at plaintiff, even if rude and vulgar, do not suffice for liability. They often are not taken literally and not considered to cause any harm. Cf. Weinberg v. Pollock, 19 Media L. Rptr. 1442 (Conn. Super. Ct. 1991) (mother not defamed by calling her son “a bastard” in connection with his conviction for murder); Sack, Defamation: Libel, Slander, and Related Problems § 2.4.7 (4th ed. 2010). “Mr. Justice Maule once tried an action in which damages were claimed for a slander which consisted of a statement that the plaintiff was a b______ i.e. a person addicted to unnatural habits. He charged the jury as follows: ‘The word is horrible and is said to impute that the plaintiff 06 kutner 4e final 3/1/13 1:53 PM Page 496 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 496 6 · DEFAMATION habitually committed a detestable crime which is not fit to be mentioned among Christians. The defendant says that the word was mere vulgar abuse and did not convey a charge of a crime, and if that is proved, the defendant is entitled to the verdict. Vulgar abuse is not actionable at Law. Now, gentlemen, you must say whether the word imputed a crime to the defendant or not. It is for you to say. And in considering your verdict you will remember that it has been proved before you that on the same occasion the defendant used the same word about a clothes-horse, a black beetle, and a piece of toasted cheese.’” The jury’s verdict was for the defendant. Gilbert, Oxford Book of Legal Anecdotes 225 (1986). Cf. Morrissette v. Beatte, 66 R.I. 73, 17 A.2d 464 (1941) (similar case; directed verdict for defendant). To attribute to plaintiff the use of vulgar or otherwise offensive language can support a defamation action. See Spence v. Funk, 396 A.2d 967 (Del. 1978); Southern Bell Telephone and Telegraph Co. v. Coastal Transmission Service, Inc., 167 Ga. App. 611, 307 S.E.2d 83 (1983); Schrottman v. Barnicle, 386 Mass. 627, 437 N.E.2d 205 (1982); Mount Cook Group Ltd. v. Johnstone Motors Ltd., 2 N.Z.L.R.488 (High Ct.); Muller v. S.A. Associated Newspapers Ltd., 1972 (2) S.A. 589 (C). 6. It is usually considered defamatory to state that a person has been arrested or indicted for a serious crime, without implying that he is guilty. See Oklahoma Publishing Co. v. Givens, 67 F.2d 62 (10th Cir. 1933) (report that plaintiff held in jail on forgery charges); Freeman v. Schwenker, 73 S.W.2d 609 (Tex. Civ. App. 1934) (statement that bank officers indicted in connection with bank shortage); Annot., Libel and Slander: Statement or Publication that Plaintiff Has Been Indicted or Is Under Indictment, 52 A.L.R.2d 1178 (1957); Annot., Actionability of False Newspaper Report That Plaintiff Has Been Arrested, 93 A.L.R.3d 625 (1979). Should it also be considered defamatory to state that a person is a suspect in a serious crime, or should be a suspect? See Hatfill v. New York Times Co., 416 F.3d 320 (4th Cir. 2005), reh’g denied (with dissent), 427 F.3d 253 (4th Cir. 2005), cert. denied, 547 U.S. 1040 (2006); Lewis v. Daily Telegraph Ltd., A.C. 234 (H.L.) (report of investigation or suspicion of fraud defamatory, but does not mean that plaintiffs guilty of fraud). Is it defamatory to state that a person is party to a pending divorce action? See Gersten v. Newark Morning Ledger Co., 52 N.J. Super. 152, 145 A.2d 56 (Law Div. 1958) (libelled both named person and wife; divorce grounds in state were adultery, extreme cruelty, desertion). 7. Can allegations of illness or other misfortune be defamatory? For example, could one incur liability for reporting that plaintiff has a fatal disease? See Chuy v. Philadelphia Eagles Football Club, 595 F.2d 1265 (3d Cir. 1979) (said that professional football player had blood disease; not defamatory since disease not contagious or associated with socially repugnant conduct, and player’s career was over when article published). That plaintiff has attempted suicide numerous times? See Wandt v. Hearst’s Chicago American, 129 Wis. 419, 109 N.W. 70 (1900) (stated that plaintiff a “suicide fiend”; defamatory). That plaintiff has a mental illness? See Annot., Libel and Slander: Actionability of Imputing to Private Person Mental Disorder or Incapacity, or Impairment of Mental Faculties, 23 A.L.R.3d 652 (1969); Markin, Still Crazy After All These Years: The Enduring Defamatory Power of Mental Disorder, 29 Law & Psych. Rev. 155 (2005) (generally defamatory). That plaintiff is ugly? See Murray v. Schlosser, 41 Conn. Supp. 362, 574 A.2d 1339 (Super. Ct. 1990) (radio disc jockeys’ selection of “dog of the week” from bridal photographs in newspaper). What about a statement describing plaintiff as impoverished? See Katapodis v. Brooklyn Spectator, Inc., 287 N.Y. 17, 38 N.E.2d 112 (1941) (parents said to be “in dire financial straits” and unable to afford private burial for their child; could be defamatory). But see Sousa v. Davenport, 3 Mass. App. Ct. 715, 323 N.E.2d 910 (1975) (poverty and unemployment). See generally Annot., Libel and Slander: Imputation of Poverty, 137 A.L.R. 913 (1942). 06 kutner 4e final 3/1/13 1:53 PM Page 497 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 497 8. With the principal case, compare Skopp v. First Federal Savings of Wilmette, 189 Ill. App. 3d 440, 545 N.E.2d 356 (1989) (statement that plaintiff terminated “for cause” conveyed only that he did not leave employment voluntarily); Nichols v. Item Publishers, Inc., 309 N.Y. 596, 132 N.E.2d 860 (1956) (“removal” of church pastor not defamatory); Morris v. Sanders Universal Products, 1 W.L.R. 67 (C.A.) (“dismissed from our employ” capable of defamatory meaning). In Coulson v. Rapport Uitgewers (Edms.) Bpk., 1979 (3) S.A. 286 (A.D.), a newspaper had reported that plaintiff was “summarily dismissed” as editor of another newspaper. The court held that such a report did not imply misconduct on plaintiff ’s part. Summary dismissal might occur on grounds to which no unfavorable connotation attached, or without any lawful ground at all. Plaintiff, therefore, had not been defamed. What if defendant said that plaintiff was demoted? Cf. Gowin v. Hazen Memorial Hospital Association, 349 N.W.2d 4 (N.D. 1984). See generally Annot., Libel and Slander: Publication of Notice of Cessation of Relationship of Principal and Agent or Employer and Employee, or of Business or Professional Relationship, 138 A.L.R. 671 (1942). ————— Hepburn v. TCN Channel Nine Pty. Ltd. New South Wales Court of Appeal 2 N.S.W.L.R. 682 [Plaintiff, a medical practitioner and medical superintendent of the “Preterm Family Planning Clinic,” sued on account of statements made in a television program broadcast by defendant. Plaintiff pleaded that the statements carried imputations that “(a) The plaintiff unlawfully procures miscarriages. (b) The plaintiff unlawfully procures miscarriages for financial gain. (c) The plaintiff is an abortionist. (d) The plaintiff in her medical practice advocates and performs abortions on request regardless of reasons. (e) The plaintiff regards financial gain to herself as an important and necessary matter when considering whether to terminate pregnancies.” The Court of Appeal held that the imputations “are capable of bearing a meaning defamatory of the plaintiff and capable of being supported by the material published.”] GLASS JA.... Much of the argument on appeal was devoted to imputation (c) viz that the plaintiff was an abortionist. It was incumbent on the plaintiff, so the argument ran, to define the precise sense in which the term was used, the sense complained of was that she performed illegal abortions and, when the imputation was so narrowed, it coincided with imputation (a) and was therefore objectionable for duplication. I see no reason why the plaintiff should be compelled to define the sense in which the defendant employed a general expression. If the plaintiff is castigated as a criminal, criminality is predicated of him in all its amplitude. He is not faced with the need to choose between the lower end of the range which will moderate his damages and the upper end which, in the context of the publication, the jury may not accept. The defendant is expected to know what his language conveyed and that, in adopting an epithet with a spread of meanings, he will be understood as imputing them all. The term abortionist applied to a medical practitioner can impute that she terminates pregnancies with or without lawful authority. The defendant may be able to persuade the jury that the contextual framework limited the meaning to lawful conduct. But even if it did, I am of opinion that the jury could, acting reasonably, treat as defamatory the imputation that pregnancies were lawfully terminated by the plaintiff. 06 kutner 4e final 3/1/13 1:53 PM Page 498 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 498 6 · DEFAMATION There is no need to document the existence in the community of a deep factional divide on the issue of abortion. The pro-abortion lobby approves the existing grounds for lawful termination of pregnancies and seeks to have them extended. The anti-abortion lobby contends that all abortion is morally wrong and that no abortion should be lawful. So the description of the plaintiff as a lawful abortionist will excite both approbation and disapprobation in different sections of the community. How does the law of defamation accommodate these discrepant social attitudes? There is a body of English authority which suggests that the standard of opinion is that of “right thinking people generally”. The corollary to this proposition was that an imputation of conduct which disparaged the plaintiff only in the eyes of a limited class was not defamatory. In the United States, on the other hand, an imputation can be defamatory if it injures a man in the eyes of “a considerable and respectable class in the community” though it be only a minority, Peck v. Tribune Co. 214 US 185, at 190 (1909), in which Holmes J said “liability is not a question of a majority vote”. In Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1, at 7, Griffith CJ, disapproved of the use of the term “right thinking” reader unless it were to be equated with a reader of fair average intelligence. I take this to be a rejection of the notion that a moral consensus exists upon what constitutes creditable or discreditable behavior. It has been argued in this country that principle requires that regard should be paid to actual community attitudes, right or wrong, “The Criterion of Defamation” G L Fricke (1958) 32 ALJ 7. In the absence of any binding pronouncement of the High Court I would hold the view that it is proper for the law of defamation to recognize that there are many subjects in a pluralist society upon which contradictory attitudes exist — e.g. uranium mining and State aid for private schools to name two others — and that it would be futile for the judges to arbitrate between them. As Fleming says, by adopting the standard of the “right thinking” man the question becomes not what people actually think but what they should think, Law of Torts, 5th ed (1977), at 530. It is defamatory to describe a person in terms which to the general public are innocuous, if they diminish him in the eyes of those aware of special facts, provided publication is made to those persons. Consistency in my view requires that a man can justly complain that words, which lower him in the estimation of an appreciable and reputable section of the community, were published to members of it, even though those same words might exalt him to the level of a hero in other quarters. Where a television programme has been beamed to a large audience it can be presumed, without special proof, that its viewers will include some who advocate the “right to life” and abhor the destruction of foetuses, whatever the circumstances. In the estimation of such persons the plaintiff can claim to have been disparaged even if abortionist meant lawful abortionist. If it also meant unlawful abortionist, she can also claim to have been denigrated in the eyes of a different but substantial section of the viewers who support the existing law but do not want it extended. Of course, I omit from consideration the question whether the imputation in either of its aspects can be justified so far as concerns this particular plaintiff. For these reasons I would allow the submission of imputation (c) to the jury. [Hutley and Priestley, JJ.A., delivered concurring opinions.] Notes 1. U.S. cases echo the English rule that a communication is defamatory when plaintiff is defamed in the estimation of the community in general, represented by “right-thinking” persons. E.g., Kimmerle v. New York Evening Journal, Inc., p. 494, supra. But there is now wide acceptance of the position of Peck v. Tribune Co., referred to in the principal case, 06 kutner 4e final 3/1/13 1:53 PM Page 499 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 499 that a statement is defamatory if it would hurt plaintiff in the estimation of an “important and respectable part of the community.” See Eldredge, Law of Defamation 31–36 (1978); Sack, Defamation: Libel, Slander, and Related Problems §§ 2.4.3, 2.4.4 (4th ed. 2010). Restatement (Second) of Torts §559, comment e (1977), distinguishes between a communication that prejudices plaintiff in the eyes of a “substantial and respectable minority” of the community and one that would be derogatory in the view of only a single individual or very small group. Also, there is no defamation when the communication reaches individuals “with views sufficiently peculiar to regard as derogatory what the vast majority of persons regard as innocent.” The Peck case involved use of plaintiff ’s picture in an advertisement for whiskey. Cf. Tolley v. J.S. Fry and Sons, Ltd., A.C. 333 (H.L.), in which an advertisement for chocolates included a caricature of an amateur golfer, thereby calling into question his amateur status. Would it be defamatory to say of a Jehovah’s Witness that he accepted a blood transfusion? See Eldredge, Law of Defamation 35–36 (1978). To include a kosher meat dealer in a list of stores that sell a brand of bacon? See Braun v. Armour & Co., 254 N.Y. 514, 173 N.E. 845 (1930). To call a black person an “Uncle Tom”? See Moore v. P.W. Publishing Co., 3 Ohio St. 2d 183, 209 N.E.2d 412 (1965), cert. denied, 382 U.S. 978 (1966). Compare Weiner v. Time & Life Inc., 133 Misc. 2d 622, 507 N.Y.S.2d 784 (Sup. Ct. 1986) (“community” standard in action against national magazine not that of plaintiff’s small Orthodox community). What if plaintiff was called a German during one of the wars with Germany? See Richter v. Mack, 1917 A.D. 201 (not defamatory). Is it defamatory to say that someone is an atheist? 2. “Respectable” would exclude persons who may be substantial in numbers but whose views are so anti-social that it is not proper for the courts to recognize them — for example, criminals, in the case of a statement that a former gang member bungled holdups, or has reformed and is no longer to be trusted. Restatement (Second) of Torts § 559, comment e (1977). Should a court for this reason now refuse to follow the precedents, mostly from southern states, treating as defamatory references to a white person as black? See Smolla, Law of Defamation §4:5 (2d ed. 1999). It is usually held that an imputation of homosexuality is defamatory. See Annot., Imputation of Homosexuality as Defamation, 7 A.L.R.6th 135 (2005). But this was rejected in Albright v. Morton, 321 F. Supp. 2d 130 (D. Mass. 2004), aff’d sub nom. Amrak Productions, Inc. v. Morton, 410 F.3d 69 (1st Cir. 2005). The court believed that identifying a person as homosexual would not now discredit him in any “considerable and respectable class of the community” and that to find this defamatory would validate the view that homosexuals were immoral and legitimize prejudice against them. What is the best position on this issue? See generally Lidsky, Defamation, Reputation, and the Myth of Community, 71 Wash. L. Rev. 1 (1996). 3. Whether it is defamatory to refer to a person as an “informer” is addressed in a number of cases. Most conclude that it is not. See Saunders v. Board of Directors, WHYYTV (Channel 12), 382 A.2d 257 (Del. Super. Ct. 1978) (“F.B.I. informant”); Connelly v. McKay, 176 Misc. 685, 28 N.Y.S.2d 327 (Sup. Ct. 1941) (proprietor of service station and rooming house primarily patronized by truck drivers said to be informing authorities of truckers’ violations of Interstate Commerce Commission regulations); Rose v. Borenstein, 119 N.Y.S.2d 288 (N.Y. City Ct. 1953) (plaintiff said to have informed French customs authorities that defendants were in illegal possession of diamonds); Prinsloo v. S.A. Associated Newspapers Ltd., 1959 (2) S.A. 693 (W) (allegation that student was doing espionage work on university campus for South African Police). But see Westby v. Madison Newspapers, Inc., 81 Wis. 2d 1, 259 N.W.2d 691 (1977) (could be defamatory to report that plaintiffs spied on their political-activist neighbors as paid informants for government agency); Graham v. Roy, (1851) 13 D. 634 (Scot. Ct. Sess.) (circulation of re- 06 kutner 4e final 3/1/13 1:53 PM Page 500 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 500 6 · DEFAMATION port that plaintiff informed excise officers about distiller for purpose of obtaining half share of penalties assessed). Byrne v. Deane, 1 K.B. 818 (C.A.), arose from a poem placed on the wall of a golf club. The poem was subject to the interpretation that plaintiff furnished information that led to a raid on the club in which illegal gambling machines were removed. It was held that the words were incapable of a defamatory meaning; saying that a person put in motion the proper machinery for suppressing crime could not be defamatory. In Burrascano v. Levi, 452 F. Supp. 1066 (D. Md. 1978), aff’d, 612 F.2d 1306 (4th Cir. 1979), the court decided that a newspaper’s statement that a prison inmate would be given a new identity through the government’s witness protection program was not libellous, though it allegedly resulted in his being shunned by other inmates and danger to his safety. Cf. Michtavi v. New York Daily News, 587 F.3d 551 (2d Cir. 2009) (not defamatory to report that inmate planned to cooperate with prosecutors). 4. It has been held that it is not defamatory to attribute political views to which many persons in the community are strongly opposed. Steinman v. Di Roberts, 23 A.D.2d 693, 257 N.Y.S.2d 695 (1965), aff’d, 17 N.Y.2d 512, 267 N.Y.S.2d 512, 214 N.E.2d 789 (1966) (“liberal”); Rawlins v. McKee, 327 S.W.2d 633 (Tex. Civ. App. 1959) (“radical” “leftwinger” “backed and financed by... labor bosses”). Cf. Chicago, Rock Island & Pacific Railway Co. v. Medley, 55 Okla. 145, 155 P. 211 (1916) (“labor agitator”). Is this because the possession of political views cannot reasonably be regarded as discreditable, or because to entertain such actions would have the courts of a democracy decide which political philosophies are acceptable and which are not? The question of whether it is defamatory to associate a person with Communism has been affected by changing community views about the threat posed to the United States by the Soviet Union. See Harper, James & Gray, Law of Torts §5.1 (3d ed. 2006). During the “Cold War” period following World War II, the prevailing view was that this is defamatory. See Utah State Farm Bureau Federation v. National Farmers Union Service Corp., 198 F.2d 20 (10th Cir. 1952); Herrmann v. Newark Morning Ledger Co., 48 N.J. Super. 420, 138 A.2d 61 (App. Div. 1958), on reh’g, 49 N.J. Super. 551, 140 A.2d 529 (App. Div. 1958). In Grant v. Reader’s Digest Association, Inc., 151 F.2d 733 (2d Cir. 1945), cert. denied, 326 U.S. 797 (1946), the court found actionable a statement that a lawyer was a legislative representative for a state Communist Party, even though it might cause only “wrongthinking” people to have adverse feelings about plaintiff. Cf. MacLeod v. Tribune Publishing Co., 52 Cal. 2d 536, 343 P.2d 36 (1959) (libellous to say of candidate for public office that he was endorsed by newspaper recognized as mouthpiece for Communist Party). But see National Association of Government Employees, Inc. v. Central Broadcasting Corp., 379 Mass. 220, 396 N.E.2d 996 (1979) (charge of Communism against labor union merely “pejorative rhetoric”). What if the imputation is right-wing extremism? See Washburn v. Wright, 261 Cal. App. 2d 789, 68 Cal. Rptr. 224 (1968) (“extremist” and allegation of John Birch Society membership not defamatory). See generally Annot., Libel and Slander: Imputation of Subversive or Otherwise Objectionable Political or Social Principles, 33 A.L.R.2d 1196 (1954). 5. Imputing “unchastity” is a classic form of defamation. See pp. 533–542, infra. And it has been held that to say a person is illegitimate is actionable. See Shelby v. Sun Printing and Publishing Association, 38 Hun 474 (N.Y. Sup. Ct. 1886), aff ’d, 109 N.Y. 611, 15 N.E. 895 (1888); Annot., Libel and Slander: Charging One with Being a Bastard or Illegitimate, 53 A.L.R. 548 (1928). Should changing community attitudes on these subjects and their relevance to social standing lead to the conclusion that such remarks are no longer defamatory? Would a court still hold, as in Van Wiginton v. Pulitzer Publishing Co., 218 F. 795 (8th Cir. 1914), that it is defamatory to portray a person as the child of a convicted murderer? Cf. Rose v. Daily Mirror, Inc., 284 N.Y. 335, 31 N.E.2d 182 (1940) (plaintiffs reported to be widow and children of notorious murderer); Hamilton 06 kutner 4e final 3/1/13 1:53 PM Page 501 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 501 v. UPI, 9 Media L. Rptr. 2453 (S.D. Iowa 1983) (plaintiff reported to be husband of business proprietor charged with indecent exposure). What about a gossip column insinuating a rift between husband and wife? See Lyman v. New England Newspaper Publishing Co., 286 Mass. 258, 190 N.E. 542 (1934). ————— Burton v. Crowell Publishing Company United States Circuit Court of Appeals, Second Circuit 82 F.2d 154 (1936) L. HAND, Circuit Judge. This appeal arises upon a judgment dismissing a complaint for libel upon the pleadings. The complaint alleged that the defendant had published an advertise-ment... made up of text and photographs; that one of the photographs was “susceptible of being regarded as representing plaintiff as guilty of indecent exposure and as being a person physically deformed and mentally perverted”; that some of the text, read with the offending photograph, was “susceptible of being regarded as falsely representing plaintiff as an utterer of salacious and obscene language”; and finally that “by reason of the premises plaintiff has been subjected to frequent and conspicuous ridicule, scandal, reproach, scorn, and indignity.” The advertisement was of “Camel” cigarettes; the plaintiff was a widely known gentleman steeple-chaser, and the text quoted him as declaring that “Camel” cigarettes “restored” him after “a crowded business day.” Two photographs were inserted; the larger, a picture of the plaintiff in riding shirt and breeches, seated apparently outside a paddock with a cigarette in one hand and a cap and whip in the other. This contained the legend, “Get a lift with a Camel”; neither it, nor the photograph, is charged as part of the libel, except as the legend may be read upon the other and offending photograph. That represented him coming from a race to be weighed in; he is carrying his saddle in front of him with his right hand under the pommel and his left under the cantle; the line of the seat is about twelve inches below his waist. Over the pommel hangs a stirrup; over the seat at his middle a white girth falls loosely in such a way that it seems to be attached to the plaintiff and not to the saddle. So regarded, the photograph becomes grotesque, monstrous, and obscene; and the legends, which without undue violence can be made to match, reinforce the ribald interpretation. That is the libel. The answer alleged that the plaintiff had posed for the photographs and been paid for their use as an advertisement; a reply, that they had never been shown to the plaintiff after they were taken. On this showing the judge held that the advertisement did not hold the plaintiff up to the hatred, ridicule, or contempt of fair-minded people, and that in any event he consented to its use and might not complain. We dismiss at once so much of the complaint as alleged that the advertisement might be read to say that the plaintiff was deformed, or that he had indecently exposed himself, or was making obscene jokes by means of the legends. Nobody could be fatuous enough to believe any of these things; everybody would at once see that it was the camera, and the camera alone, that had made the unfortunate mistake. If the advertisement is a libel, it is such in spite of the fact that it asserts nothing whatever about the plaintiff, even by the remotest implications. It does not profess to depict him as he is; it does not exaggerate any part of his person so as to suggest that he is deformed; it is patently an optical illusion, and carries its correction on its face as much as though it were a verbal utterance which expressly declared that it was false. It would be hard for words so guarded to carry any sting, but the same is not true of caricatures, and this is an example; for, notwithstanding all we have just said, it exposed the plaintiff to overwhelming ridicule. The contrast be- 06 kutner 4e final 3/1/13 1:53 PM Page 502 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 502 6 · DEFAMATION tween the drawn and serious face and the accompanying fantastic and lewd deformity was so extravagant that, though utterly unfair, it in fact made of the plaintiff a preposterously ridiculous spectacle; and the obvious mistake only added to the amusement. Had such a picture been deliberately produced, surely every right-minded person would agree that he would have had a genuine grievance; and the effect is the same whether it is deliberate or not. Such a caricature affects a man’s reputation, if by that is meant his position in the minds of others; the association so established may be beyond repair; he may become known indefinitely as the absurd victim of this unhappy mischance. Literally, therefore, the injury falls within the accepted rubric; it exposes the sufferer to “ridicule” and “contempt.”... The defendant answers that every libel must affect the plaintiff’s character; but if by “character” is meant those moral qualities which the word ordinarily includes, the statement is certainly untrue, for there are many libels which do not affect the reputation of the victim in any such way. Thus, it is a libel to say that a man is insane; or that he has negro blood if he professes to be white; or is too educated to earn his living; or is desperately poor; or that he is a eunuch; or that he has an infectious disease, even though not venereal; or that he is illegitimate; or that his near relatives have committed a crime; or that he was mistaken for Jack Ketch; or that a woman was served with process in her bathtub. It is indeed not true that all ridicule, or all disagreeable comment, is actionable; a man must not be too thin-skinned or a self-important prig; but this advertisement was more than what only a morbid person would not laugh off; the mortification, however ill-deserved, was a very substantial grievance. A more plausible challenge is that a libel must be something that can be true or false, since truth is always a defense. It would follow that if, as we agree, the picture was a mistake on its face and declared nothing about the plaintiff, it was not a libel. We have been able to find very little on the point. In Dunlop v. Dunlop Rubber Co. (1920) 1 Irish Ch. & Ld. Com. 280, 290–292, the picture represented the plaintiff in foppish clothes, and the opinion seems to rely merely upon the contempt which that alone might have aroused, but those who saw it might have taken it to imply that the plaintiff was in fact a fop. In Zbyszko v. New York American, 228 App. Div. 277, 239 N.Y.S. 411, however, though the decision certainly went far, nobody could possibly have read the picture as asserting anything which was in fact untrue; it was the mere association of the plaintiff with a gorilla that was thought to lower him in others’ esteem. Nevertheless, although the question is almost tabula rasa, it seems to us that in principle there should be no doubt. The gravamen of the wrong in defamation is not so much the injury to reputation, measured by the opinions of others, as the feelings, that is, the repulsion or the light esteem, which those opinions engender. We are sensitive to the charge of murder only because our fellows deprecate it in most forms; but a head-hunter, or an aboriginal American Indian, or a gangster, would regard such an accusation as a distinction, and during the Great War an “ace,” a man who had killed five others, was held in high regard. Usually it is difficult to arouse feelings without expressing an opinion, or asserting a fact; and the common law has so much regard for truth that it excuses the utterance of anything that is true. But it is a non sequitur to argue that whenever truth is not a defense, there can be no libel; that would invert the proper approach to the whole subject.... The only reason why the law makes truth a defense is not because a libel must be false, but because the utterance of truth is in all circumstances an interest paramount to reputation; it is like a privileged communication, which is privileged only because the law prefers it conditionally to reputation. When there is no such countervailing interest, there is no excuse; and that is the situation here. In conclusion therefore we hold that because the picture taken with the legends was calculated to expose the plaintiff to more than trivial ridicule, it was prima facie 06 kutner 4e final 3/1/13 1:53 PM Page 503 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 503 actionable; that the fact that it did not assume to state a fact or an opinion is irrelevant; and that in consequence the publication is actionable. Finally, the plaintiff ’s consent to the use of the photographs for which he posed as an advertisement was not a consent to the use of the offending photograph; he had no reason to anticipate that the lens would so distort his appearance. If the defendant wished to fix him with responsibility for whatever the camera might turn out, the result should have been shown him before publication. Possibly any one who chooses to stir such a controversy in a court cannot have been very sensitive originally, but that is a consideration for the jury, which, if ever justified, is justified in actions for defamation. Judgment reversed; cause remanded for trial. Notes 1. “Ridicule” is included in the traditional defamation formula of a publication that holds a person up to “hatred, contempt or ridicule.” In most of the relevant cases, the ridicule implied a defect in plaintiff ’s conduct or character. One example is Francis Mezzara’s Case, 2 N.Y. City Hall Recorder 113 (Ct. Gen. Sess. 1817), a criminal libel case in which an artist had added to his portrait of the complainant a pair of ass’ ears. Another example is Villers v. Monsley, (1769) 2 Wils. K.B. 403, 95 Eng. Rep. 886 (C.P.). There, defendant had composed doggerel verse which suggested that plaintiff stank and had “the itch.” See also Farnsworth v. Hyde, 266 Or. 236, 512 P.2d 1003 (1973) (book portraying plaintiff as very lazy man with wife who did most of work on farm). In Powers v. DurginSnow Publishing Co., 154 Me. 108, 144 A.2d 294 (1958), a newspaper column stated that a thirty-five-year-old man — “a classic example of typical yankee thrift” — was building his own coffin, in order to save the cost of a casket, and planning to dig his own grave. Was this libellous? 2. When a publication imputes nothing “wrong” to plaintiff, is there any good reason why a defamation action should be permitted? How can plaintiff ’s reputation have been harmed? Eldredge, Law of Defamation 39 (1978), relates that when the Burton case was before the Second Circuit, there was a meeting in New York of the American Law Institute’s Reporter for Torts and his advisers, one of whom was Learned Hand. During luncheon at the Harvard Club Judge Hand pulled the advertisement out of his briefcase and without any comment passed it around the table. The persons who saw the advertisement burst into roars of laughter. “That settles it,” said Judge Hand. “It’s defamatory.” Cf. Mazatti v. Acme Products, Ltd., 3 W.W.R. 43, 4 D.L.R. 601 (Man. K.B.), involving an advertisement for a patent medicine. The advertisement contained a supposed recommendation by plaintiff, saying that the medicine cured him of a variety of ailments including dizzy spells and constipation. 3. Zbyszko v. New York American, Inc., 228 App. Div. 277, 239 N.Y.S. 411 (1930), to which the principal case refers, arose from an article on the scientific theory of evolution. It was illustrated with the picture of a gorilla and a picture of plaintiff in a wrestling pose, captioned “Stanislaus Zbyszko, the Wrestler, Not Fundamentally Different from the Gorilla in Physique.” Was Burton a stronger or a weaker case for liability? In Berkoff v. Burchill, 4 All E.R. 1008 (C.A.), a 2–1 majority accepted a libel action for a newspaper column that said plaintiff was hideous-looking. Compare Byrd v. Hustler Magazine, Inc., 433 So. 2d 593 (Fla. App. 1983), review denied, 443 So. 2d 979 (Fla. 1984), in which, to make a point about advertising by tobacco companies, defendant altered a cigarette advertisement for which plaintiff posed. The alteration gave the impression that 06 kutner 4e final 3/1/13 1:53 PM Page 504 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 504 6 · DEFAMATION plaintiff was making a rude gesture, but defendant’s magazine made it clear that the advertisement had been altered. The court ordered entry of judgment for defendant. 4. Is it defamatory to publish a false obituary notice? See Decker v. Princeton Packet, Inc., 116 N.J. 418, 561 A.2d 1122 (1989); Cardiff v. Brooklyn Eagle, Inc., 190 Misc. 730, 75 N.Y.S.2d 222 (Sup. Ct. 1947) (notice that plaintiff had died and was “lying in state” at address of his bar and grill; not defamatory as did not injure plaintiff ’s reputation). Cf. Lemmer v. The Tribune, 50 Mont. 559, 148 P. 338 (1915) (report that plaintiff died of morphine overdose). What about a false or premature wedding announcement? See Emerson v. Grimsby Times and Telegraph Co., Ltd., (1926) 42 T.L.R. 238 (C.A.) (full account of ceremony composed and published on day prior to wedding, with statement that couple now on honeymoon; plaintiff ridiculed when at business on day of wedding; action dismissed); Kirman v. Sun Printing & Publishing Co., 99 App. Div. 367, 91 N.Y.S. 193 (1904) (allegedly false article about wedding at which, when it was realized that bridegroom would not appear, bride fell screaming to floor and guests rushed to get food before it was put away). 5. Is a photograph of a person in the nude defamatory? See McCabe v. Village Voice, Inc., 550 F. Supp. 525 (E.D. Pa. 1982) (not libellous if not obscene or suggestive; might indicate plaintiff is supportive of avant garde photography, but that is not defamatory). What if it is used in a parody? See Vitale v. National Lampoon, Inc., 449 F. Supp. 442 (E.D. Pa. 1978). Some types of pictorial representations are likely to be found defamatory — for example, the inclusion of plaintiff ’s likeness in a wax museum depicting notorious crimes. See Monson v. Tussauds Ltd., 1 Q.B. 671 (C.A.) (plaintiff had been tried for murder in Scotland, with verdict of “not proven”; portrayed with gun in hand, not far from “Chamber of Horrors”). ————— Derbyshire County Council v. Times Newspapers Ltd. House of Lords A.C. 534 LORD KEITH OF KINKEL. My Lords, this appeal raises, as a preliminary issue in an action of damages for libel, the question whether a local authority is entitled to maintain an action in libel for words which reflect on it in its governmental and administrative functions. That is the way the preliminary point of law was expressed in the order of the master, but it has opened out into an investigation of whether a local authority can sue for libel at all. Balcombe L.J., giving the leading judgment in the Court of Appeal, summarised the facts thus: “... In two issues of ‘The Sunday Times’ newspaper on 17 and 24 September 1989 there appeared articles concerning share deals involving the superannuation fund of the Derbyshire County Council. The articles in the issue of 17 September were headed ‘Revealed: Socialist tycoon’s deals with a Labour [Party] chief ’ and ‘Bizarre deals of a council leader and the media tycoon:’ that in the issue of 24 September was headed ‘Council share deals under scrutiny.’ The council leader was Mr. David Melvyn Bookbinder; the ‘media tycoon’ was Mr. Owen Oyston.... [These articles] question the propriety of certain investments made by the council of moneys in its superannuation fund, with Mr. Bookbinder as the prime mover, in three deals with Mr. Oyston or companies controlled by him....” Following the publication actions of damages for libel were brought against the publishers of “The Sunday Times,” its editor and the two journalists who wrote the articles, 06 kutner 4e final 3/1/13 1:53 PM Page 505 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 505 by Derbyshire County Council, Mr. Bookbinder and Mr. Oyston. Mr. Oyston’s action was settled by an apology and payment of damages and costs. The statements of claims in this action by the plaintiff and in that by Mr. Bookbinder are for all practical purposes in identical terms. That of the plaintiff asserts in paragraph 6 that there were written and published “of and concerning the council and of and concerning the council in the way of its discharge of its responsibility for the investment and control of the superannuation fund” the words contained in the article of 17 September, and paragraph 8 makes a similar assertion in relation to the article of 24 September. Paragraph 9 states: “By reason of the words published on 17 September 1989 and the words and graph published on 24 September 1989 the plaintiff council has been injured in its credit and reputation and has been brought into public scandal, odium and contempt, and has suffered loss and damage.” No special damage is pleaded.... [The council appealed from the Court of Appeal’s decision that it could not maintain a libel action.] There are only two reported cases in which an English local authority has sued for libel. The first is Manchester Corporation v. Williams 1 Q.B. 94; 63 L.T. 805. The defendant had written a letter to a newspaper alleging that “in the case of two, if not three, departments of our Manchester City Council, bribery and corruption have existed, and done their nefarious work.” A Divisional Court consisting of Day J. and Lawrance J. held that the statement of claim disclosed no cause of action. The judgment of Day J. in the Queen’s Bench report is in these terms: “This is an action brought by a municipal corporation to recover damages for what is alleged to be a libel on the corporation itself, as distinguished from its individual members or officials. The libel complained of consists of a charge of bribery and corruption. The question is whether such an action will lie. I think it will not. It is altogether unprecedented, and there is no principle on which it could be founded. The limits of a corporation’s right of action for libel are those suggested by Pollock C.B. in the case which has been referred to. A corporation may sue for a libel affecting property, not for one merely affecting personal reputation. The present case falls within the latter class. There must, therefore, be judgment for the defendant.”... Metropolitan Saloon Omnibus Co. Ltd. v. Hawkins (1859) 4 H. & N. 87 was an action by a company... in respect of a libel imputing to it insolvency, mismanagement and dishonest carrying on of its affairs. The Court of the Exchequer held the action to be maintainable. Pollock C.B., in the passage referred to by Day J., said, at p. 90: “That a corporation at common law can sue in respect of a libel there is no doubt. It would be monstrous if a corporation could maintain no action for slander of title through which they lost a great deal of money. It could not sue in respect of an imputation of murder, or incest, or adultery, because it could not commit those crimes. Nor could it sue in respect of a charge of corruption, for a corporation cannot be guilty of corruption, although the individuals composing it may. But it would be very odd if a corporation had no means of protecting itself against wrong; and if its property is injured by slander it has no means of redress except by action. Therefore it appears to me clear that a corporation at common law may maintain an action for a libel by which its property is injured.” In South Hetton Coal Co. Ltd. v. North-Eastern News Association Ltd. 1 Q.B. 133 a newspaper had published an article alleging that the houses in which the company accommodated its colliers were in a highly insanitary state. The Court of Appeal held that the company was entitled to maintain an action for libel without proof of special damage, in respect that the libel was calculated to injure the company’s reputation in the 06 kutner 4e final 3/1/13 1:53 PM Page 506 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 506 6 · DEFAMATION way of its business. Lord Esher M.R. said, at p. 138: “... I have come to the conclusion that the law of libel is one and the same as to all plaintiffs; and that, in every action of libel, whether the statement complained of is, or is not, a libel, depends on the same question — viz., whether the jury are of opinion that what has been published with regard to the plaintiff would tend in the minds of people of ordinary sense to bring the plaintiff into contempt, hatred, or ridicule, or to injure his character. The question is really the same by whomsoever the action is brought — whether by a person, a firm, or a company. But though the law is the same, the application of it is, no doubt, different with regard to different kinds of plaintiffs. There are statements which, with regard to some plaintiffs, would undoubtedly constitute a libel, but which, if published of another kind of plaintiffs, would not have the same effect.” He went on to say that certain statements might have the same effect, whether made with regard to a person, or a firm, or a company, for example statements with regard to conduct of a business, and having elaborated on the question whether or not a particular statement might reflect on the manner of conduct of a business, continued: “With regard to a firm or a company, it is impossible to lay down an exhaustive rule as to what would be a libel on them. But the same rule is applicable to a statement made with regard to them. Statements may be made with regard to their mode of carrying on business, such as to lead people of ordinary sense to the opinion that they conduct their business badly and inefficiently. If so, the law will be the same in their case as in that of an individual, and the statement will be libellous. Then, if the case be one of libel — whether on a person, a firm, or a company — the law is that the damages are at large. It is not necessary to prove any particular damage; the jury may give such damages as they think fit, having regard to the conduct of the parties respectively, and all the circumstances of the case.” In National Union of General and Municipal Workers v. Gillian K.B. 81 the Court of Appeal held that a trade union could, in general, maintain an action in tort, and that an action for libel was no exception to that rule. No detailed consideration was given to the nature of the statements in respect of which the action might lie, though Scott L.J. referred to the disintegration of a trade union which might result from a libel, and Uthwatt J. said that he saw no reason why a non-trading corporation should not have the same rights as a trading corporation as respects imputations on the conduct by it of its activities. The second case involving proceedings by a local authority is Bognor Regis Urban District Council v. Campion 2 Q.B. 169, a decision of Browne J. Mr. Campion had distributed at a meeting of a ratepayers’ association a leaflet savagely attacking the council, which sued him for libel. At the trial Mr. Campion conducted his own case without the assistance of solicitors or counsel. Browne J. found in favour of the council and awarded it damages of £2,000. At p. 173, he stated his intention to apply a principle to be found in National Union of General and Municipal Workers v. Gillian, from which he quoted extensively in the following pages. He continued: “Just as a trading company has a trading reputation which it is entitled to protect by bringing an action for defamation, so in my view the plaintiffs as a local government corporation have a ‘governing’ reputation which they are equally entitled to protect in the same way — of course, bearing in mind the vital distinction between defamation of the corporation as such and defamation of its individual officers or members. I entirely accept the statement made in Gatley on Libel and Slander, 6th ed. (1967), p. 409, para. 890: ‘A corporation or company cannot maintain an action of libel or slander for any words which reflect, not upon itself, but solely upon its individual officers or members.’ Then there is a quotation: ‘To merely attack or challenge the rectitude of the officers or members of a corporation, and hold them or either of them up to scorn, hatred, contempt, or obloquy for acts done in their official capac- 06 kutner 4e final 3/1/13 1:53 PM Page 507 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 507 ity, or which would render them liable to criminal prosecution, does not give the corporation a right of action for libel.’ I stress the words ‘solely’ and ‘merely’ in those passages....” Browne J. then proceeded to consider Manchester Corporation v. Williams, and after quoting from the judgment of Day J. in the Law Times Report, 63 L.T. 805, 806–807, said: “Day J. seems to put his judgment on two grounds; first, that a corporation may sue for a libel affecting property and not for one merely affecting personal reputation. If this was ever right, it has in my view been overruled by South Hetton Coal Co. v. North-Eastern News Association Ltd. (where substantially this argument was used by the defendants) and by National Union of General and Municipal Workers v. Gillian (where the Manchester Corporation case was cited). The other ground seems to have been that a corporation cannot be guilty of corruption and therefore it cannot be defamatory to say or write that it has been guilty of corruption. This was based on the obiter dictum of Pollock C.B. in Metropolitan Saloon Omnibus Co. v. Hawkins and was repeated later by Lopes L.J. in South Hetton Coal Co. v. North-Eastern News Association Ltd. The Manchester Corporation case is severely criticised in Spencer Bower on Actionable Defamation (1908), pp. 279 and 280; in Fraser on Libel and Slander, 7th ed. (1936), pp. 89 and 90; and by Oliver J. in Willis v. Brooks 1 All E.R. 191 where he said that after reading the National Union of General and Municipal Workers case he agreed with the editors of Fraser, who say: ‘It is respectfully submitted that the above statement of the law by Day J... is unsound in principle and would not be upheld in the Court of Appeal.’...” It is to be observed that Browne J. did not give any consideration to the question whether a local authority, or any other body exercising governmental functions, might not be in a special position as regards the right to take proceedings for defamation. The authorities cited above clearly establish that a trading corporation is entitled to sue in respect of defamatory matters which can be seen as having a tendency to damage it in the way of its business. Examples are those that go to credit such as might deter banks from lending to it, or to the conditions experienced by its employees, which might impede the recruitment of the best qualified workers, or make people reluctant to deal with it. The South Hetton Coal Co. case would appear to be an instance of the latter kind, and not, as suggested by Browne J., an authority for the view that a trading corporation can sue for something that does not affect it adversely in the way of its business. The trade union cases are understandable upon the view that defamatory matter may adversely affect the union’s ability to keep its members or attract new ones or to maintain a convincing attitude towards employers. Likewise in the case of a charitable organisation the effect may be to discourage subscribers or otherwise impair its ability to carry on its charitable objects. Similar considerations can no doubt be advanced in connection with the position of a local authority. Defamatory statements might make it more difficult to borrow or to attract suitable staff and thus affect adversely the efficient carrying out of its functions. There are, however, features of a local authority which may be regarded as distinguishing it from other types of corporation, whether trading or non-trading. The most important of these features is that it is a governmental body. Further, it is a democratically elected body, the electoral process nowadays being conducted almost exclusively on party political lines. It is of the highest public importance that a democratically elected governmental body, or indeed any governmental body, should be open to uninhibited public criticism. The threat of a civil action for defamation must inevitably have an inhibiting effect on freedom of speech. In City of Chicago v. Tribune Co. (1923) 139 N.E. 86 the Supreme Court of Illinois held that the city could not maintain an action of damages for libel. Thompson C.J. said, at p. 90: “The fundamental right of freedom of speech is involved in this litigation, and not merely the right of liberty of the press. If this action can be maintained against a newspaper it can be maintained against every private citizen 06 kutner 4e final 3/1/13 1:53 PM Page 508 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 508 6 · DEFAMATION who ventures to criticise the ministers who are temporarily conducting the affairs of his government. Where any person by speech or writing seeks to persuade others to violate existing law or to overthrow by force or other unlawful means the existing government, he may be punished... but all other utterances or publications against the government must be considered absolutely privileged. While in the early history of the struggle for freedom of speech the restrictions were enforced by criminal prosecutions, it is clear that a civil action is as great, if not a greater, restriction than a criminal prosecution. If the right to criticise the government is a privilege which, with the exceptions above enumerated, cannot be restricted, then all civil as well as criminal actions are forbidden. A despotic or corrupt government can more easily stifle opposition by a series of civil actions than by criminal prosecutions....” After giving a number of reasons for this, he said: “It follows, therefore, that every citizen has a right to criticise an inefficient or corrupt government without fear of civil as well as criminal prosecution. This absolute privilege is founded on the principle that it is advantageous for the public interest that the citizen should not be in any way fettered in his statements, and where the public service or due administration of justice is involved he shall have the right to speak his mind freely.” These propositions were endorsed by the Supreme Court of the United States in New York Times Co. v. Sullivan (1964) 376 U.S. 254, 277. While these decisions were related most directly to the provisions of the American Constitution concerned with securing freedom of speech, the public interest considerations which underlaid them are no less valid in this country. What has been described as “the chilling effect” induced by the threat of civil actions for libel is very important. Quite often the facts which would justify a defamatory publication are known to be true, but admissible evidence capable of proving those facts is not available. This may prevent the publication of matters which it is very desirable to make public.... It is of some significance to observe that a number of departments of central government in the United Kingdom are statutorily created corporations, including the Secretaries of State for Defence, Education and Science, Energy, Environment and Social Services. If a local authority can sue for libel there would appear to be no reason in logic for holding that any of these departments (apart from two which are made corporations only for the purpose of holding land) was not also entitled to sue. But as is shown by the decision in Attorney-General v. Guardian Newspapers Ltd. (No. 2) [p. 326, supra], a case concerned with confidentiality, there are rights available to private citizens which institutions of central government are not in a position to exercise unless they can show that it is the public interest to do so. The same applies, in my opinion, to local authorities. In both cases I regard it as right for this House to lay down that not only is there no public interest favouring the right of organs of government, whether central or local, to sue for libel, but that it is contrary to the public interest that they should have it. It is contrary to the public interest because to admit such actions would place an undesirable fetter on freedom of speech. In Die Spoorbond v. South African Railways, 1946 A.D. 999 the Supreme Court of South Africa held that the South African Railways and Harbours, a governmental department of the Union of South Africa, was not entitled to maintain an action for defamation in respect of a publication alleged to have injured its reputation as the authority responsible for running the railways. Schreiner J.A. said, at pp. 1012–1013: “I am prepared to assume, for the purposes of the present argument, that the Crown may, at least in so far as it takes part in trading in competition with its subjects, enjoy a reputation, damage to which could be calculated in money. On that assumption there is certainly force in the contention that it would be unfair to deny to the Crown the weapon, an ac- 06 kutner 4e final 3/1/13 1:53 PM Page 509 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 509 tion for damages for defamation, which is most feared by calumniators. Nevertheless it seems to me that considerations of fairness and convenience are, on balance, distinctly against the recognition of a right in the Crown to sue the subject in a defamation action to protect that reputation. The normal means by which the Crown protects itself against attacks upon its management of the country’s affairs is political action and not litigation, and it would, I think, be unfortunate if that practice were altered. At present certain kinds of criticism of those who manage the state’s affairs may lead to criminal prosecutions, while if the criticism consists of defamatory utterances against individual servants of the state actions for defamation will lie at their suit. But subject to the risk of these sanctions and to the possible further risk... of being sued by the Crown for injurious falsehood, any subject is free to express his opinion upon the management of the country’s affairs without fear of legal consequences. I have no doubt that it would involve a serious interference with the free expression of opinion hitherto enjoyed in this country if the wealth of the state, derived from the state’s subjects, could be used to launch against those subjects actions for defamation because they have, falsely and unfairly it may be, criticised or condemned the management of the country. Such actions could not, I think, be confined to those brought by the railways administration for criticism of the running of the railways. Quite a number of government departments... indulge in some form of trading on a greater or a lesser scale. Moreover, the government, when it raises loans, is interested in the good or bad reputation that it may enjoy among possible subscribers to such loans. It would be difficult to assign any limits to the Crown’s right to sue for defamation once its right in any case were recognised.” These observations may properly be regarded as no less applicable to a local authority than to a department of central government. In the same case Watermeyer C.J. observed that the reputation of the Crown might fairly be regarded as distinct from that of the group of individuals temporarily responsible for the management of the railways on its behalf. In the case of a local authority temporarily under the control of one political party or another it is difficult to say that the local authority as such has any reputation of its own. Reputation in the eyes of the public is more likely to attach itself to the controlling political party, and with a change in that party the reputation itself will change. A publication attacking the activities of the authority will necessarily be an attack on the body of councillors which represents the controlling party, or on the executives who carry on the day to day management of its affairs. If the individual reputation of any of these is wrongly impaired by the publication any of these can himself bring proceedings for defamation. Further, it is open to the controlling body to defend itself by public utterances and in debate in the council chamber. The conclusion must be, in my opinion, that under the common law of England a local authority does not have the right to maintain an action of damages for defamation. That was the conclusion reached by the Court of Appeal, which did so principally by reference to article 10 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (1953).... Article 10 is in these terms: “1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.... 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights 06 kutner 4e final 3/1/13 1:53 PM Page 510 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 510 6 · DEFAMATION of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”... The Court of Appeal approached the matter upon the basis that the law of England was uncertain upon the issue lying at the heart of the case, having regard in particular to the conflicting decisions in Manchester Corporation v. Williams and Bognor Regis Urban District Council v. Campion and to the absence of any relevant decision in the Court of Appeal or in this House. In that situation it was appropriate to have regard to the Convention. Balcombe L.J... concluded, having carried out the balancing exercise requisite for purposes of article 10 of the Convention, that there was no pressing social need that a corporate public authority should have the right to sue in defamation for the protection of its reputation. That must certainly be true considering that in the past hundred years there are only two known instances of a defamation action by a local authority. He considered that the right to sue for malicious falsehood gave such a body all the protection which was necessary.... All three Lords Justices also alluded to the consideration that the publication of defamatory matter concerning a local authority was likely to reflect also on individual councillors or officers, and that the prospect of actions for libel at their instance also afforded some protection to the local authority....... I would dismiss the appeal. It follows that Bognor Regis Urban District Council v. Campion was wrongly decided and should be overruled. Appeal dismissed with costs. Notes 1. It has long been accepted that a business corporation can have an action for defamation. It has a reputation that can be injured. An action for libel or slander can be maintained when the statement has the tendency to deter persons from dealing with the corporation or otherwise to prejudice it in the conduct of business. See Dupont Engineering Co. v. Nashville Banner Publishing Co., 13 F.2d 186 (M.D. Tenn. 1925); Restatement (Second) of Torts § 561(a) (1977). Whether particular criticisms of a business, its products or its services are defamatory is treated at pp. 250–255. supra. If not defamatory, they may be actionable as injurious falsehood. Should a corporation be allowed to maintain a defamation action without proof of actual financial loss? See Jameel v. Wall Street Journal Europe Sprl, 1 A.C. 359 (H.L.). 2. National Refining Co. v. Benzo Gas Motor Fuel Co., p. 250, supra, categorizes as defamatory statements concerning goods or products which impute to the vendor or producer fraud, deceit, dishonesty or reprehensible business methods. This omits the important category of statements adversely reflecting upon a business proprietor’s solvency or creditworthiness. El Meson Espanol v. NYM Corp., 521 F.2d 737 (2d Cir. 1975), states that a corporation can be protected only against statements affecting its credit or property. What is meant by “property”? Is it defamatory to report that a corporation provides very poor working or living conditions for its employees? See Di Giorgio Fruit Corp. v. American Federation of Labor and Congress of Industrial Organizations, 215 Cal. App. 2d 560, 30 Cal. Rptr. 350 (1963). See generally Annots., Action by Corporation for Libel or Slander, 52 A.L.R. 1199 (1928); 86 A.L.R. 442 (1933). 3. In some circumstances, statements directed at an officer or employee of a corporation also defame the corporation. In Neiman-Marcus Co. v. Lait, 107 F. Supp. 96 (S.D.N.Y. 1952), a book said that a department store’s president “may not know” that some of the store’s models were “call girls— the top babes in town.” It was also reported that saleswomen 06 kutner 4e final 3/1/13 1:53 PM Page 511 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 511 were available at a cheaper price and that most of the male sales staff were “fairies.” The company that owned the store claimed damages for libel and survived a motion to dismiss, the court deciding that a corporation could be defamed and damaged by a report that it employs “seriously undesirable personnel.” It is also possible for statements directed at a corporation to defame its officers or principal stockholders. This is especially likely in the case of a small, closely held corporation or a corporation that has the same name as the individual complaining of defamation. See Brayton v. Crowell-Collier Publishing Co., 205 F.2d 644 (2d Cir. 1953); Schiavone Construction Co. v. Time, Inc., 619 F. Supp. 684 (D.N.J. 1985). 4. It is generally accepted that a non-profit corporation may have an action for defamation. See New York Society for the Suppression of Vice v. MacFadden Publications, Inc., 260 N.Y. 167, 183 N.E. 284 (1932); Restatement (Second) of Torts § 561(b) (1977). Also a partnership or an unincorporated association, whether profit or non-profit. See Restatement (Second) of Torts § 562 (1977). In the case of a partnership, it cannot be assumed that because a partnership is composed of the individual partners, defamation of the partnership defames the partners or vice versa. See Annot., Parties Plaintiff to Actions Based on Libel or Slander of a Firm or Its Members, 52 A.L.R. 912 (1928). Cf. Gilbert v. Crystal Foundation Lodge, 80 Ga. 284, 4 S.E. 905 (1887) (“the venereal disease was not a partnership malady; that was individual property”). But see Cohn v. AmLaw, 5 Media L. Rptr. 2367 (N.Y. Sup. Ct. 1980) (libel of lawyer in professional capacity also libel of firm). The principal rationale for allowing an action to a non-profit corporation or association is that defamation can interfere with its receipt of financial support. On what basis does a labor union have standing to maintain a defamation action? 5. Drawing upon the Derbyshire County Council case, the court in Goldsmith v. Bhoyrul, Q.B. 459, concluded that a political party could not maintain a defamation action. The court believed it was in the public interest that free speech and criticism respecting political parties, as well as elected governmental bodies, not be fettered by defamation actions or threats of actions. Contra, Argus Printing and Publishing Co. Ltd. v. Inkatha Freedom Party, 1992 (3) S.A. 579 (A.D.). What about an action for defamation of a religious group? See Church of Scientology of California v. Siegelman, 475 F. Supp. 950 (S.D.N.Y. 1979), rearg. denied, 481 F. Supp. 866 (S.D.N.Y. 1979); Gorman v. Swaggart, 524 So. 2d 915 (La. App. 1988), cert. denied, 530 So. 2d 571–575 (La. 1988), cert. denied sub nom. Treeby v. Gorman, 489 U.S. 1017 (1989); Anderson v. Church of Scientology Inc., W.A.R. 279 (Full Ct.), rev’g W.A.R. 71 (Sup. Ct.). 6. On the question of whether a defamation action can be maintained by a governmental body, City of Prince George v. British Columbia Television System, 2 W.W.R. 404, (1979) 95 D.L.R.3d 577 (B.C.C.A.), decides that the way in which a municipality legislates, administers its legislation and conducts its activities creates a municipal reputation that can be the subject of a defamation nation. Cf. Windsor Roman Catholic Separate School Board v. Southam Inc., (1984) 46 O.R.2d 231, 9 D.L.R.4th 284 (High Ct.) (school board). In Ballina Shire Council v. Ringland, (1994) 33 N.S.W.L.R. 680 (C.A.), the Derbyshire County Council case was followed as to defamation liability, but the majority permitted an action for injurious falsehood. American cases reject defamation actions by governments and government agencies. City of Chicago v. Tribune Co., 307 Ill. 595, 139 N.E. 86 (1923) (defendant published articles alleging that city was “broke” and headed for bankruptcy; held that city could not recover for defamation even if publications malicious and harmful to city’s “proprietary” enterprises); State v. Time, Inc., 249 So. 2d 328 (La. App. 1971) (state of Louisiana had no action and could not bring action on behalf of its citizens); College Savings Bank v. Florida Prepaid Postsecondary Education Expense 06 kutner 4e final 3/1/13 1:53 PM Page 512 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 512 6 · DEFAMATION Board, 919 F. Supp. 756 (D.N.J. 1996) (government agency that operated college tuition savings program could not sue for defamation, or injurious falsehood, despite its “proprietary” functions). The First Amendment may be interpreted to prevent defamation actions by governmental entities. See Port Arthur Independent School District v. Klein & Associates Political Relations, 70 S.W.3d 349 (Tex. App. 2002) (school district suing over report about alleged fight at high school prom); Cox Enterprises, Inc. v. Carroll City/County Hospital Authority, 247 Ga. 39, 273 S.E.2d 841 (1981) (guarantee of free speech held to preclude defamation actions based on criticism of government, including criticism of hospital authority that lacked power to tax but had such attributes of sovereignty as power of eminent domain). See generally Annot., Right of Governmental Entity to Maintain Action for Defamation, 45 A.L.R.3d 1315 (1972). 7. Any living person may be defamed, even a small child. An example would be referring to an infant as illegitimate. No action lies for defamation of the dead, but when it reflects upon persons still living they can have a cause of action. There are some statutes that make defamation of the dead a crime. They have been held not to provide a civil remedy. See Flynn v. Higham, 149 Cal. App. 3d 677, 197 Cal. Rptr. 145 (1983); Gugliuzza v. K.C.M.C., Inc., 606 So. 2d 790 (La. 1992); Restatement (Second) of Torts § 560 (1977); Dobbs, Law of Torts 1139–1140 (2000). Would it be desirable to create a civil remedy? See Armstrong, Nothing but Good of the Dead?, 18 A.B.A.J. 229 (1932); Note, Dead but Not Forgotten: Proposals for Imposing Liability for Defamation of the Dead, 67 Tex. L. Rev. 1525 (1989). ————— Cassidy v. Daily Mirror Newspapers, Ltd. Court of Appeal 2 K.B. 331 SCRUTTON L.J. The facts in this case are simple. A man named Cassidy, who for some reason also called himself Corrigan and described himself as a General in the Mexican Army, was married to a lady who also called herself Mrs. Cassidy or Mrs. Corrigan. Her husband occasionally came and stayed with her at her flat, and her acquaintances met him. Cassidy achieved some notoriety in racing circles and in indiscriminate relations with women, and at a race meeting he posed, in company with a lady, to a racing photographer, to whom he said he was engaged to marry the lady and the photographer might announce it. The photographer, without any further inquiry, sent the photograph to the Daily Mirror with an inscription: “Mr. M. Corrigan, the race horse owner, and Miss X” — I omit the name — “whose engagement has been announced,” and the Daily Mirror published the photograph and inscription. This paper was read by the female acquaintances of Mrs. Cassidy or Mrs. Corrigan, who gave evidence that they understood from it that that lady was not married to Mr. M. Corrigan and had no legal right to take his name, and that they formed a bad opinion of her in consequence. Mrs. Cassidy accordingly brought an action for libel against the newspaper setting out these words with an innuendo, meaning thereby that the plaintiff was an immoral woman who had cohabited with Corrigan without being married to him. At the trial counsel for the defendants objected that the words were not capable of a defamatory meaning. McCardie J. held that they were; the jury found that they did reasonably bear a defamatory meaning and awarded the plaintiff 500l. damages. The damages were high, but the plaintiff called considerable evidence of damage to social reputation.... 06 kutner 4e final 3/1/13 1:53 PM Page 513 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 513 The real questions involved were: (1.) Was the alleged libel capable of a defamatory meaning? (2.) As the defendants did not know the facts which caused the friends of Mrs. Cassidy to whom they published the words to draw defamatory inferences from them about the plaintiff, were they liable for those inferences? Now the alleged libel does not mention the plaintiff, but I think it is clear that words published about A may indirectly be defamatory of B. For instance, “A is illegitimate.” To persons who know the parents those words may be defamatory of the parents. Or again, “A has given way to drink; it is unfortunately hereditary”; to persons who know A’s parents these words may be defamatory. Or “A holds a D. Litt. degree of the University at X, the only one awarded.” To persons who know B, who habitually describes himself (and rightly so) as “D. Litt. of X,” these words may be capable of a defamatory meaning. Similarly, to say that A is a single man or a bachelor may be capable of a defamatory meaning if published to persons who know a lady who passes as Mrs. A and whom A visits.... It was argued that the words were not capable of the meaning that Corrigan was a single man, for they might mean that Corrigan was intending to seduce a woman under promise of marriage, or that he was divorced and could marry. On this I would remark that it would be so unusual for a seducer publicly to make his untrue representations, that the jury might well reject this meaning. Also, that I do not agree with some dicta to the effect that if words are capable of several meanings, some defamatory and some innocent, they should not be left to the jury. I agree with the view expressed arguendo by Sir Montague Smith in the case of Simmons v. Mitchell [(1880) 6 App. Cas. 156]: “The judge must decide if the words are reasonably capable of two meanings; if he so decide, the jury must determine which of the two meanings was intended;” and by “intended” I understand that a man is liable for the reasonable inferences to be drawn from the words he used, whether he foresaw them or not, and that if he scatters two-edged and ambiguous statements broadcast, without knowing or making inquiry about facts material to the statements he makes and the inferences which may be drawn from them, he must be liable to persons who, knowing those facts, draw reasonable inferences from the words he publishes.... In my view the words published were capable of the meaning “Corrigan is a single man,” and were published to people who knew the plaintiff professed to be married to Corrigan; it was for the jury to say whether those people could reasonably draw the inference that the so-called Mrs. Corrigan was in fact living in immoral co-habitation with Corrigan, and I do not think their finding should be interfered with. But the second point taken was that the defendants could not be liable for the inference drawn, because they did not know the facts which enabled some persons to whom the libel was published, to draw an inference defamatory of the plaintiff. This was rested on some dicta of Brett L.J. in [Capital and Counties Bank v. Henty, (1880) 5 C.P.D. 514] that the evidence which made apparently innocent statements defamatory must be, “known both to the person who wrote the document and to the persons to whom it was published.” This, I think, was originally obiter, and, since the decision in E. Hulton & Co. v. Jones [ A.C. 20], is no longer law. The statement in the judgment of Farwell L.J. [ 2 K.B. 444, 478] in that case is: “The rule is well settled that the true intention of the writer of any document, whether it be contract, will, or libel, is that which is apparent from the natural and ordinary interpretation of the written words; and this, when applied to the description of an individual, means the interpretation that would be reasonably put upon those words by persons who know the plaintiff and the circumstances.”... This judgment was approved by Lord Gorell and Lord Atkinson in the House of Lords, and supported by Lord Shaw, who says: “... Sufficient expression is given to the same principles by Abbott C.J. in Bourke v. Warren [(1826) 2 C. & P. 307]... in which that 06 kutner 4e final 3/1/13 1:53 PM Page 514 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 514 6 · DEFAMATION learned judge says: ‘The question for your consideration is whether you think the libel designates the plaintiff in such a way as to let those who knew him understand that he was the person meant. It is not necessary that all the world should understand the libel; it is sufficient if those who know the plaintiff can make out that he is the person meant.’ I think it is out of the question to suggest that that means ‘meant in the mind of the writer’ or of the publisher; it must mean ‘meant by the words employed.’...” In my view, since E. Hulton & Co. v. Jones, it is impossible for the person publishing a statement which, to those who know certain facts, is capable of a defamatory meaning in regard to A, to defend himself by saying: “I never heard of A and did not mean to injure him.” If he publishes words reasonably capable of being read as relating directly or indirectly to A and, to those who know the facts about A, capable of a defamatory meaning, he must take the consequences of the defamatory inferences reasonably drawn from his words. It is said that this decision would seriously interfere with the reasonable conduct of newspapers. I do not agree. If publishers of newspapers, who have no more rights than private persons, publish statements which may be defamatory of other people, without inquiry as to their truth, in order to make their paper attractive, they must take the consequences, if on subsequent inquiry, their statements are found to be untrue or capable of defamatory and unjustifiable inferences. No one could contend that “M. Corrigan, General in the Mexican Army,” was “a source in whom we have full confidence.” To publish statements first and inquire into their truth afterwards, may seem attractive and up to date. Only to publish after inquiry may be slow, but at any rate it would lead to accuracy and reliability. In my opinion the appeal should be dismissed with costs. [Russell, L.J., delivered a concurring opinion.] GREER L.J. [dissenting]... Both the picture and the words are in themselves unobjectionable. They contain in their ordinary signification no defamatory statement about anybody, and it was necessary for the success of the plaintiff in the action that she should establish by innuendo that by the picture and the words the defendants said something which was defamatory of her. She therefore pleaded... an extended meaning, to the effect that the said Kettering Edward Cassidy, otherwise known as M. Corrigan, was not a man bound in lawful wedlock to the plaintiff, and that the plaintiff was not lawfully married to her husband, and that the plaintiff was living in adultery with him, and that she was a dissolute and immoral woman, and was a despicable person who had imposed upon her friends and acquaintances, and upon such members of the public as knew her, by pretending to be a respectable married woman, whereas she had been living in concubinage with the said Kettering Edward Cassidy, otherwise known as M. Corrigan, for many years. In order to succeed in her action the plaintiff was bound to show that, reasonably interpreted, the words used in the newspaper were intended to convey the meaning set out in the innuendo, the intention being judged not by what was in the mind of the writer, but what appears from the words he has used. In my judgment it was not enough for her to show that people who knew her jumped to the conclusion that she was living with Corrigan as his mistress. She was bound to show that, reasonably interpreted, the words of the alleged libel contained an allegation to that effect. She called as her witnesses three ladies who knew her as the wife of Cassidy and knew that her husband was the man who owned racehorses under the name of Corrigan. Each of these ladies knew that her husband, as they admitted in their evidence, was a blackguard who had treated her badly and had been unfaithful to her. They knew that she was living apart from Cassidy, but had 06 kutner 4e final 3/1/13 1:53 PM Page 515 Copyright © 2013 Carolina Academic Press, LLC. All rights reserved. 6 · DEFAMATION 515 seen him on several occasions visiting the shop where she was employed, and when they saw the paragraph in the Daily Mirror they appear to have jumped to the conclusion that she was a dishonest woman who had been deceiving them and had been living in concubinage with the scoundrel who occasionally visited her at the shop where she was employed.... In my judgment this appeal ought to succeed. I think so for two reasons. First, it is not sufficient to establish liability for a witness to prove that by reason of some fact to which the libel refers he draws an unfavourable inference against the plaintiff. That is not sufficient to justify a verdict that the words in question are libellous. The jury must be satisfied by evidence that, on a reasonable interpretation of the words used, the innuendo is proved to be an implicit part of the statement made by the defendants.... The language of the alleged libel refers to the fact of the announcement of Mr. Corrigan’s engagement, and some persons, that is to say the ladies who gave evidence, have chosen, not by reason of the language of the allege