NEWSPAPERS AND LIBEL ACTIONS. T HE case of "Farquhar v. Lloyd"
has naturally excited much alarm in newspaper offices. The editor of the Daily Chronicle probably thought that the comment of his too humorous contributor on the result of the pro- ceedings in which Messrs. Farquhar had vainly sought to recover the pri e of certain tinned provisions supplied by them was fully justified by the report. But Messrs. Farqnhar thought otherwise, and a jury have taken their view rather than that of the editor, and have added an unpleasantly sharp point to their preference by giving very heavy damages. It is not quite clear in what part of this unexpectedly expensive paragraph the sting .lay, but presumably it was in the implication that the use of any portion of Messrs. Farquhar's stock must be injurious to health. To say this was to go beyond anything that the report of the case justified. It was shown that certain tins were unfit for use, but this was all. Indeed, it was part of Messrs. Farqubar's case that a very small proportion—one-third per cent, is what they themselves put it at—is returued as unsound. But the writer in the Daily Chronicle was above such nice distinctions. In his opinion tinned provisions must be wholesome all in all, or not at all. If one-third per cent, is bad, the whole must be bad ; and happy in this conviction, he gave the rein to his fancy and landed the proprietors of the Daily Chronicle in, as the result proved, a very costly action.
Undoubtedly it seems bard that a very slight piece of carelessness on the part of an editor—the omission to satisfy himself that a comment upon a trial assumed nothing that was not unmistakably borne out by the report of it—should make his proprietors the poorer by many hundred pounds. What is a newspaper to do if it may not say " Serve him right" when some one loses his case ? Criticism is one of the two essential functions of news- papers. To comment upon the news they print comes as natural to them as to print it. In the light of "Farquhar v. Lloyd," this instinct will have to be kept in order. Editors will have to do their work in heavier fetters than heretofore, and will be unable to plead the absence of negligence or malice as any bar to an action for libel. This, at least, is the moral which the Times draws from the proceedings in "Farquhar v. Lloyd," and so stated it is sufficiently disturbing. We question whether the Times has given sufficient weight to the extension which the fact that a percentage of provisions supplied by Messrs. Farquhar were had underwent at the bands of the writer in the Daily Chronicle. It prefers to raise the larger issue: —Ought the defendants in a libel action to be held any more responsible for such harm as they have done than the driver of a cart which runs into another vehicle ? What the several responsibilities at present amount to was stated the next day by Sir Herbert Stephen. "People who drive carte in the street are bound to take reasonable care how they do it, but if they do take reason- able care they are not bound to insure other people against accidents. Newspapers, on the other hand, are mulcted in costs and damages if they injure others by falling short of a degree of caution and prevision which it is absolutely impossible they should exercise." Is it right that this distinction should exist, and that news- papers should be treated as though they were in a sense h,ostes humani generis?
Sir Herbert Stephen draws a very ingenious distinction between the two cases. The owner of a cart, he argues, "not merely did not intend to hurt" the person driven over, "he did not intend to enter into any relation with him whatever." He would, had he been given the choice, have preferred that the victim had never crossed the road at that particular point and that particular moment. The newspaper, on the other hand, does intend to deal with the person libelled. It does not, indeed, intend to libel him, but it intends to make use of him. That use may be the rendering of a service to the public, or it may only be the provision of a paragraph at a time when incidents are few and " copy " hard to come by. But whatever the contemplated use may be, the newspaper deliberately puts the person libelled to that use, and on this ground Sir Herbert Stephen argues that the principle of the verdict in "Farquhar v. Lloyd" is sound. It rests, in fact, on a basis closely resembling that of the Workman's Compensation Act. Why is an employer saddled with a liability in regard to his workmen from which be is free as rewards the general public ? Because he employs his workmen for his own profit. And so in another sense a newspaper uses for its own profit the persons on whose acts it comments. The Daily Chronicle was not obliged to comment on the quality of Messrs. Farquhar's goods. It did so of its ownfree will,—not intending, we may be sure, to exceed the permitted limits of fair comment, but still exceeding them, as the jury thought, in fact. There was no malice, and as the editor no doubt thought, there had been reasonable caution. Probably, when be read the paragraph in proof, he looked up the report of the proceedings in the County Court and satisfied himself that the comment was in what looked like substantial agreement with the decision of the Judge. That is to say, he used as much care as would have held the owner of a cart harmless, but is not sufficient., the law being what it is, to hold the owner of a newspaper harmless.
Hard cases, we know, make bad law, and severe as the verdict in "Farcpiliaz v. Lloyd" unquestionably is—unduly severe, probably, so far as the damages go—it seems to us to be precisely one of these hard cases. We greatly doubt whether it would be for the public benefit that the law should be altered. It occasionally has highly inconvenient con- sequences to newspaper proprietors, but it does guard them against a temptation to which in the absence of a very strict libel law newspapers would inevitably be exposed. In England we know so little of attacks upon private character that we are tempted to forget what a rich field they would afford to journalistic enterprise of a certain kind. If there is one change more obvious than another in the public taste as regards newspapers, it is the growing desire to read gossip. The journals that boast of getting the largest number of readers take care to give those readers a daily column "about people." What Lady So- and-So wore, and at what point in Bond Street Mr. This was seen in animated conversation with Mr. That, and how long it was before they were joined by Mr. Somebody- else, are facts of which it is supposed that every one must feel eager to be informed. As it is impossible that any one with sufficient intelligence to be a newpaper editor can want this sort of matter for his own pleasure or edification, it must be provided for the gratification of his readers. But if they are pleased with details of this innocent, if idiotic, kind, how much keener would be the gratification given by an interesting scandal ? There would be no difficulty in supplying any number of such things. A fair amount of them are always in circulation, and if at any moment the supply ran short, what could be easier than to make up the tale by a little judicious inven- tion? With the present rivalry among newspapers, if one of them began on these lines, some of the others would be sure to follow, until in the end the object of a large number of journals would be to outdo all others in the raciness and variety of the personal intelligence supplied to their readers.
On the whole, therefore, we prefer the law as it is, notwithstanding the hardship which it occasionally in- dicts upon newspapers. Almost any one of them—to quote Sir Herbert Stephen again—" can render almost any man's life intolerable," and can do this with the best possible results to its circulation and income. As things are, private life is regarded as practically outside hostile criticism. Public men, in their public capacities, may be the theme of innumerable homilies, but private persons go free. The value of such a state of things is inestimable ; and if, in any appreciable degree, it can be traced to our present Libel Law, it is well that this law should be maintained. We see the consequences of a different system in the United States, and we are not in love with the spectacle.
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