Odger's English Common Law

530 DEFAMATION.
refers to the language employed, and not to the mind of the
writer. Hence it is possible that a fair comment may be
published maliciqusly, and, if it is, an action will lie. 1
Privilege.
There are occasions on which it is a man's duty to state
his real opinion fully and frankly, without thought or fear of
consequences. To some of such occasions due regard for the
public service or the administration of justice requires that
an " absolute " privilege should attach, and a complete
immunity be afforded to the speaker or writer: no action
against him is permitted, even though it be alleged that he
knew his words to be false and spoke or wrote them with
deliberate spite. There are not many such occasions, and
the Courts will not increase the number. 2
The real ground on which the doctrine of " absolute privilege " rests " is
that in the public-interest it is not desirable to inquire whether the words or
acts of certain persons are malicious or not. It is not that there is any
privilege to be malicious, but that, so far as it is a privilege of the individual
•—I should call it rather a right of the public—the privilege is to be exempt
from all inquiry as to malice ; that he should not be liable to have his con-
duct inquired into to see whether it is malicious or not—the reason being
that it is desirable that persons who occupy certain positions should be
perfectly free and independent, and, to secure their independence, that their
acts and words should not be brought before tribunals for inquiry into them
merely on the allegation that they are malicious." 3
There is, however, a much larger class of occasions on
which the privilege is a " qualified " one ; occasions on which
it is the right or duty of the defendant to state what he
honestly believes to be the truth about the plaintiff, but on
which the interests of society do not require that he should
be free from all responsibility. In such cases the plaintiff
will recover damages in spite of the privilege, if he can
prove that the defendant did not act in good faith, but was
actuated by some improper motive in making the statement
complained of. This improper motive is called " malice." *
1 McQuire v. Western Morning News, [1903] 2 K. B. 100 ; Joynt v. Cyole Trade
Thomas v. Bradbury, Agnew $ Co., [1906] 2
Publishing Co., [1904] 2 K. B. 292 ;
K. B. 627 ; Lever v. Associated Newspapers, [1907] 2 K. B. 626.
2 Per cur. in Stevens v. Sampson (1879), 5 Ex. D. at p. 55.
8 Per Channell, J., in Bottomley v. Brougham, [1908] 1 K. B. at p. 587.
' Clark v. Molyneux (1877), 3 Q. B. D. at p. 246.