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Report No. 33

27. English case as to qualified privilege.-

We may refer to the judgment of Willes J.1 in one case. An action was brought against the Queen's printer for damages for publication of certain defamatory statements contained in a minute prepared by the First Lord of the Admiralty for presentation to the Parliament during the ensuing session, printed by the defendant. The privilege relating to matters in which the speaker or writer, and the person addressed have had a duty or interest in common was considered, and the following examples cited:-

1. Henwood v. Harrison, 1872 Law Reports 7 CP 606 (620, 621, 622).

"Of this class are cases of characters given to servants, either in dismissing them1-2-3-or in advising others not to employ them, even though the advice be not asked for4-5 of advice given to another, as to the character of a person with whom marriage was contemplated 6; of information that a robbery had taken place; of a handbill offering a reward for the recovery of bills7 of exchange, stating that they were suspected of being embezzled by the plaintiff, such handbill being published for the protection of the person liable on the bills, or to secure the conviction of the offender8 of complaints to public officers of the conduct of persons in their employment9-10 of fair criticism of literary or other works11-12; of places of public resort13; or of the persons who perform there14 or of other proceedings of a character in which the public have an interest15

The principle upon which these cases are founded is a universal one, that the public convenience is to be preferred to private interests, and that communications which the interests of society require to be unfettered may freely be made by persons acting honestly without actual malice, notwithstanding that they involve relevant comments condemnatory of individuals.

In a popular work on defamation16 the position has been thus stated:-

"A person is not only entitled, but is under a duty, to report to the police what he knows, if he has reason to believe that a felony has been committed. Such a report would be protected by qualified privilege because the person making it had a duty to do so, and the persons to whom it was made-namely the police officials-had an interest in receiving it. But the position would be quite different if, instead of making the report to the police, he made it to the local newspaper, which would have no interest which the law would recognize in receiving it."

1. Taylar v. Hawkins, 16 QB 308: 20 LJ (QB) 313.

2. Somerville v. Hawkins, 10 CB 583: 20 LJ (CP) 131.

3. Manby v. Witt, 18 CB 544: 25 LJ (CP) 294.

4. Pattison v. Jones, 8 B&C 578 (per Bayley J.).

5. Gardner v. Slade, 13 QB 796: 18 LJ (QB) 334.

6. Todd v. Hawkins, 8 C&P 88 (per Alderson B.).

7. Kine v. Sewell, 3 M&W 297.

8. Finden v. Westlake, 3 M&W 461 (per Tindal C.J.).

9. Blake v. Pilfold, 1 M&Rob 198 (per Taunton J.).

10. Woodward v. Lander, 6 C&P 548 (per Alderson B).

11. Tabart v. Tipper, 1 Camp 350 (per Lord Ellenborough).

12. Fryer v. Kinnerey, 15 CN (NS) 422: 33 LJ (CP) 96.

13. Dibbin v. Swan, 1 Esp 28 (per Lord Kenyon).

14. Gregary v. Duke of Burnswick, 1 Car & K 24 (per Tindal C.J.).

15. Dunne v. Anderson, R&M 267: 3 Bing 88 (per Best C.J.).

16. Hickson and Carter-Ruck Law of Libel and Slander, (1953), p. 147.

Section 44, Code of Criminal Procedure, 1898 Back

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