Odger's English Common Law

538 DEFAMATION.
malice may in some cases be proved by intrinsic evidence,
such as the unwarranted violence of the defendant's
language or the unnecessary extent of the publication. That
the expressions used are angry is not enough ; they must be
shown to be malicious. There are occasions on which a man
honestly indignant may use strong language without losing
his privilege
;
x
it is only where the expressions used are
wholly unwarranted by the occasion that their violence can
be relied on as any proof of malice in the defendant. 2
If the defendant intentionally publishes defamatory words
to persons who are outside the privilege, the defence is
rebutted ;
but the accidental presence of a third person when
defamatory wor-ds are spoken will not of itself destroy the
privilege. Sometimes it is the duty of the defendant to
speak out then and there what he believes to be the truth,
whoever may be present. 8
There are also occasions on which
a person who is about to make grave charges against another
is entitled to provide himself with a reliable witness ; thus,
a master has clearly a right to charge his servant bond fide
with any supposed misconduct in his service, and to admonish
and blame him ; and the simple circumstance of the master
exercising this right in the presence of another will not of
necessity take away from him the protection of the law.
Should it, however, appear in evidence that an opportunity
had been sought for making such charge before third persons
when it might have been made in private, this fact alone
would be strong proof of a malicious intention', which would
destroy all privilege. 4
Where the occasion of publication is privileged and the
circumstances are shown by the evidence to be equally con-,
sistent with either the presence or the absence of malice, the
plaintiff will fail in his action ; for he has not proved malice.
If, however, at the close of the plaintiff's case there is any
evidence which would warrant the jury in inferring actual or
express malice, the judge cannot withdraw the case from
1 Spill v. Maule (1869), L. R. 4 Ex. 232.
a Fryer v. Kinnersley (1863), 16 0. B. N. S. 422.
8 Piltard v. Oliver, [1891] 1 Q. B. 474.
' Somerxille v. Hawkins (1851), 10 C. B. 590 ; Hmtt v. G. N. By. Co., [1891] *
Q B. 189.