Odger's English Common Law

lord Campbell's libel act. 179
employment and in pursuance of the master's orders,
expressed or implied. This rule pressed very hardly on
the proprietor of a newspaper. He was not only liable in
damages, but he was also criminally liable, if his editor
permitted a libel to appear in the paper, although he himself
had never seen it. 1 Hence Lord Campbell inserted in his
Libel Act a provision which enables any defendant, whose
servants or agents have published a libel without any
express instructions from him, to prove that such publication
was made without his authority, consent or knowledge, and
did not arise from want of due care or caution on his part."
Such proof is now an answer to an indictment, although it is
still no defence to a claim for damages. 3
Libel or no libel is always a question for the jury both in civil and
criminal cases. It is for the judge to determine whether the words com-
plained of are capable of a libellous meaning, and also whether they have
in law been published ; all other questions which ordinarily arise on the
trial of an indictment or information for libel must be left to the jury.
The judge should explain to them what a libel is ; he may state for their
guidance what his own opinion is of the document before him ; but the
ultimate decision of the matter rests with the jury.
So much for the common law misdemeanour of publishing
a libel. But certain offences have been created by statute,
which deserve attention here.
By section 4 of Lord Campbell's Libel Act, 1843, it is a
misdemeanour to maliciously publish any defamatory libel
knowing the same to be false ; the punishment may be fine or
imprisonment, or both, such imprisonment not to exceed two
years, without hard labour.
By section 5 of the same Act, it is a misdemeanour to
maliciously publish any defamatory libel ; the punishment
may be fine or imprisonment, or both, such imprisonment
1 B. v. Walter (1799), 3 Esp. 21.
2 H & 7 Vict. c. !)«, s 7.
s Sec R. v. Holbrook (1877), 3 Q. B. D. 60 ; (1878), 4 Q. B. D. 42. Here the
defendants, proprietors of a newspaper, had appointed an editor with general
authority to conduct the paper—they themselves taking no part in the management
45f it—and the main question was whether the general authority thus given to the
editor was per se evidence that the defendants had authorised or consented to the
publication of a libel contained in it within the meaning of the above section.
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