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those who are under his orders, a parent censuring in good faith a child in the presence of other children, a schoolmaster whose authority is derived from a parent censuring in good faith a pupil in the presence of other pupils, a master censuring a servant in good faith for remissness in service, a banker censuring in good faith the cashier of his bank for the conduct of such cashier as such cashierare within this exception.

In the case of Dawkins v. Lord Paulet (5 LR. QB. 94) it was held by three Judges, in opposition to the opinion of Cockburn, C. J., that no action would lie by an inferior officer against his superior for reports upon his conduct written by such superior in the ordinary course of his military duty, even though they were written maliciously and without reasonable or probable cause. The words good faith" contained in this Section show that the view taken by the Chief Justice is the one which is to be applied to its construction.

Accusation pre

in

Eighth Exception.-It is not defamation to prefer in good faith an accusation against any person to any of those who faith to a duly have lawful authority over that person, with respect to the subject

ferred in good

authorised person.

matter of accusation.

Illustration.

If A in good faith accuses Z before a Magistrate; if A in good faith complains of the conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z, a child, to Z's father, A is within this exception.

Communications of this sort have been held to be privileged, even though the person addressed was not the official superior of the party complained of and had not the power to remove him, provided he was a person whose official position made it his duty to enquire into the alleged misconduct. (Harrison v. Bush, 25 LJ. QB. 29, overruling in this respect Blagg v. Sturt, 10 QB. 899.)

Where, also, a privileged communication has been made, in consequence of which an enquiry takes place, every thing that is said or written bona fide and relevant to the enquiry and in furtherance of it is equally privileged. (Beatson v. Skene, 29 LJ. Ex. 430. 5 H. & H. 838.)

Imputation

made in

faith by a person

Ninth Exception.-It is not defamation to make an imputation on the character of good another, provided that the imputation be made in good faith for the of his interest. protection of the interest of the person making it, or of any other person, or for the public good.

for the protection

Illustrations.

"Sell

(a) A, a shopkeeper, says to B, who manages his business, nothing to Z unless he pays you ready money for I have no opinion of his honesty." A is within the exception if he has made this imputation on Z in good faith for the protection of his own interest.

(b) A, a Magistrate, in making a report to his superior officer, casts an imputation on the character of Z. Here, if the imputation is made in good faith and for the public good, A is within the exception.

Under this head will come the privilege of Counsel, to whom the greatest latitude is allowed in the conduct of a cause. As Holroyd, J., observed in an action against Sir James Scarlett,

"No action is maintainable against the party, nor, consequently, against the counsel, who is in a similar situation, for words spoken in a course of justice. If they be fair comments upon the evidence and be relevant to the matter in issue, then unless express malice be shown the occasion justifies them. If, however, it be proved that they were not spoken bona fide, or express malice be shown, then they may be actionable. At least, our judgment in the present case does not decide that they would not be so. (Hodgson v. Scarlett, 1 B. & A. 246.)

An attorney acting as a counsel is similarly privileged (Mackay v. Ford, 29 LJ. Ex. 404. 5 H. & N. 792), and a Vakeel in the Mofussil would come under the same rule. (See Act I of 1872, s. 150.)

Nor can any words, however defamatory and libellous in themselves, be made the ground of an indictment by English law when used in an affidavit made in any judicial proceeding, or in a defence made by a party to suit. (Henderson v. Broomhead, 28 LJ. Ex. 360. 4 H. & N. 569. 1 B. & A. 240, 244.)

The privilege of witnesses at a trial is even stronger, because they only speak in reply to questions put to them, which they cannot refuse to answer, and since there is an express remedy by indictment for perjury if they say anything which they know to be untrue. Hence, it has been held in England that even an action for damages will not lie against a witness for any thing he said in his evidence, even though the statement be false and defamatory, and uttered maliciously, and without reasonable and probable cause for believing it to be true, and though the plaintiff has suffered damages in consequence of it. One result, as Jervis, C. J., pointed out,

"Would be this, that in a civil suit you would be trying a witness for perjury on the evidence of one witness, which you cannot do in a criminal proceeding without the evidence of two." (Revis v. Smith, 25 LJ. CP. 195. Acc. Dawkins v. Ld. Rokeby, 8 LR. QB. 255. And in the P. C. 11 B. L. R. 321.)

And so it was held with regard to language used by a coroner in addressing a jury (Thomas v. Chirton, 31 LJ. QB. 139, 2 B. & S. 475), and by a County Court Judge while trying a case (Scott v. Stansfield, 3 LR. Ex. 220.)

But the insertion of the words "in good faith" makes the rule more stringent under the Penal Code. Accordingly, it has been held in Bengal that a charge will lie against a person for defamatory expressions used by him against his prosecutor, while he was a defendant in a criminal case, when those expressions were not used with "due care and attention." (5 R. J. & P. 42.)

It is singular that the right to publish with impunity a report of a parliamentary debate, which contains matter defamatory of an individual, should not have been established till quite recently. It has now, however, been settled that such a right does exist, on the same ground as that which justifies the publication of proceedings in a Court of Justice, viz., the advantage of publicity to the community at large. (Wason v. Walter, 4 LR. QB. 73.)

Caution intended

for the good of the

Tenth Exception.-It is not defamation to convey a caution in good faith to one person against another, provided that such caution be intended for the good of the person to whom it is conveyed, or of some person in whom that person is interested, or for the public good.

person to whom it is conveyed or for the public good.

There are many occasions in private life in which it is absolutely necessary to give one's opinion freely of others in a manner which may be very injurious to them. As Lord Ellenborough, C. J., said in a case which has already been frequently referred to (Hodgson v. Scarlett),

"The law privileges many communications, which otherwise might be considered as calumnious, and become the subject of an action. In the case of master and servant, the convenience of mankind requires that what is said in fair communication between man and man, upon the subject of character, should be privileged if made bonâ fide and without malice. If, however, the party giving the character knows what he says to be untrue, that may deprive him of the protection which the law throws around such communications." (1 B. & A. 240.)

And, so, the rule has been very recently laid down, "that if the circumstances bring the Judge to the opinion that the communication was made in the discharge of a moral or social duty, or on the ground of an interest in the party making it with a corresponding interest in the party receiving it, and that the words which passed were delivered in the honest belief that the party was performing his duty in making the communication, the Judge is to say that the action fails." (Per Erle, C. J., Whitely v. Adams, 33 L. J. C. P. 89, 491. 15 CB. NS. 392. Cowles v. Potts, 34 LJ. QB. 247. Lawless v. Anglo-Egyptian Co., 4 LR. QB. 262. Wren v. Shield, 4 LR. QB. 730.) See also a very full discussion of the law in Henwood v. Harrison, 7 LR. CP. 606. Hart v. Gumpach, 6 LR. HL. 439. Laughton v. Bp. of Sodor and Man, 6 LR. HL. 495.

And, so,

"Words spoken bona fide, by way of moral advice, are privileged; as, if a man write to a father advising him to have better regard to his children, and using scandalous words, it is only reformatory, and shall not be intended to be a libel. But if, in such a case, the publication should be in a newspaper, though the pretence should be reformation, it would be libellous." (Roscoe 438, Somervill v. Hawkins, 20 LJ. CP. 131. 10 CB. 583.)

For, in the latter case, the injury done by spreading the evil report is greater than the object in view requires. And it is as well to observe, that the privilege extended to all such communications goes no further than necessity involves. That which it may be quite justifiable to say or write to a particular person will become libellous if spread abroad to the world. Even in the case of a member of parliament who publishes an amended version of his speech he is liable for that, though he might have spoken the same words in his place with impunity. (R. v. Fleet, 1 B. & A. 384.)

And, so, a printed letter by a clergyman, professing to warn his parishioners against a new school on the ground that the schoolmaster was acting in opposition to his authority, was held not to be privileged. (Gilpin v. Fowler, 23 L. J. Ex. 152.)

On the same ground, a letter stating the conduct of a dismissed servant, which might have been considered privileged if it had been limited to a recital of facts, was held to have lost that privilege, inasmuch as it contained expressions about the plaintiff being a raving madman, and other expressions which were, in the opinion of the Court, excessive. (Fryer v. Kinnersley, 33 LJ. CP. 96. 15 CB. NS. 422.) In England, where the occasion justifies imputations which are themselves defamatory, the use of language more violent than is necessary is evidence of malice, but not conclusive, and if malice is in fact negatived the privilege is not taken away. (Cowles v. Potts, 34 LJ. QB. 247, 250. Spill v. Maule, 4 LR. Ex. 232.) But under the Penal Code such expressions would lose their privilege if used without that "due care and attention" which is essential to "good faith." (See ante, p. 389.)

Where a communication which is privileged as regards the person by whom and to whom it is addressed necessarily contains a defamatory statement against a third person, this is also privileged. For instance, a parishioner who mentioned to the rector of her parish a public rumour which imputed fraud to him and to his solicitor, the plaintiff was held to have a good defence to the action brought by the solicitor. (Davies v. Shead, 5 LR. QB. 608.)

500. Whoever defames another shall be punished with simple imprisonment for a Punishment for term which may extend to two years, or with fine, or with both.

defamation.

501. Whoever prints or engraves any matter, knowing or having good reason to Printing or engraving matter believe that such matter is defamatory of any person, shall be punished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

known to be defamatory.

Sale of printed

or engraved sub

502. Whoever sells or offers for sale any printed or engraved substance containing defamatory matter, knowing that stance containing it contains such matter, shall be defamatory matpunished with simple imprisonment for a term which may extend to two years, or with fine, or with both.

ter.

CHAPTER XXII.

OF CRIMINAL INTIMIDATION, INSULT, AND ANNOYANCE.

Criminal intimidation.

503. Whoever threatens another with any injury to his person, reputation, or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation.

The word injury is defined by s. 44 (ante, p. 26) as denoting any harm illegally caused to another. Therefore, it will not be an offence to threaten another with an action or indictment which might lawfully be preferred against him. (8 Bomb. CC. 101.) Though if he obtained money by the threat, it would apparently be punishable under s. 388, and s. 213.

The threat need not be directly addressed to the party whom it is intended to influence. It is sufficient, although it is addressed to others, if it is intended to reach the ears of the party threatened, and is used with any of the intentions stated in the Section. (Rulings of Mad. H. C. of 1865, on s. 506.)

of

Explanation.-A threat to injure the reputation any deceased person in whom the person threatened is interested, is within this Section.

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