JURY DISAGREES.

Dominion, Volume 7, Issue 2002, 9 March 1914, Page 6

JURY DISAGREES.

TIMES'?, DOMINION.

THE LAW OF LIBEL,

AND- THE ETHICS OF COMMENT.

.The.hearuig of.the action for £3000 'damages for alleged libel between the "New Zealand Times" Company, Ltd. (plaintiffs) and tho "Wellington Publishing Company, , Ltd., proprietors of .Tub Dominion newspaper (defendants), before Mr. Justico Hosting and a common'jury of twelve, was concluded in the Supremo Court on Saturday. Counsel/for tho parties had been heard the preceding day, and on Saturday His Honour addressed the jury... After.being out of tho Court for upwards of four hours tho jury failed to agree:"';. .... . ■Mr. C, T,. Skorrett, K.C., with Sir John Findlay nnd Mr. 0. E. Stout, appeared for plaintiffs. Mr. C. B. Morison, K.C., with Mr. M. Myers and Mr. T , . C. A. Hislop, appeared for tho defendants. ' . '

.QUESTIONS FOR THE JURY. HIS HONOUR'S DIRECTION: His Honour, summing up to tie jury, said that in tho action the "Times Company charged Tin; Dominion Company with having falsely 'and maliciously published on tho "Times" , Company ii libel which tho "Times" Company said affected it in'tie.way of its business, credit, and reputation. Tho alleged libel > - as contained in the article before tho jury, and ho did not think he need read it. Now, tho true meaning of."that 'articles would' be for the jury ,to consider,and determine. Hβ iiad -northing whatever 'to say as to whether.il'was in.effect a libel or"riot." .That was Entirely a question for tho jury .to consider. -■The. "Times" Company said that:tho..libellous character of -the. article; wa9 .'.evident from, its contents, and ,it would bo for tho jury to say whether, that, was so or not. But the. ','Times" Company, also gave a point to'.tho meaning'; th'oy;/e'a'id ;tliero 'was' an innuendo hi'.,'.the /article —that ''iirE Dominion Company.meant by the articlo that tlio "New"Zealand Times" Company on ©very possible occasion advocated the encouragemont and support of the - doctrine's and methods of- the United Federation' of Labour,- and its leaders, , as-described in the statement of claim, and thereby-encouraged.riot, lawlessness,' , 'and crime.""lt Would be for the jury to say whqther,that'mean;' ing eouldfairly and ''reasonably be taken out of' tho'article which' was" set" before. t'h'bm. "But oven" if they found :that that meaning as it was stated in the innuendo could not be taken out of the. article, yet if they thought, apart from that, it had, a meaning ..which, was libellous according to tho definition which ho.'would endeavour to give, they .could find -that a-' libel .lias. been .published by'Tife'Dominion Comiitfhyy That was tc-.'s:iy',* : they woro'noV. btiiind to take the innuendo , and say: "Wo can't find that <m'eauing "in the articlo; and therefore thero'is'no case.". 'They might tako tho, artjcle .by itself and addres3 themselves to tho question "of.'whether flie- article.-taken.-by itself .did or did. not contain matter defamatory to • tho' "Times" Company.; In doing that they would not/:of- , course, strain io find a defamatory meaning. It was not to bo supposed 'that u man -would willingly defame his neighbour, but they must bring common sense to bear on the. question; . they' must' . ask. themselves whether, 'if on'Hh© morning that tho article'.appeared, they had read tho article, they would, ' have, according to their common sense and reason, cbmoto tho conclusion that' 'this matter was defamatory to the "Times" Company. fo'.l.ay Aside Prejudices. 'He need scarcely ask , them in doing bo'to'lay aside any political opinions they might hold' concerning the merits or demerits of the strike. They must as far as ; they. could lay asido all their own decided views upon these quostions, because the questions wero not being tried.' They wore trying tho question of whether tho "Times" Company had been libelled by this article in The Dominion. I'hsy should not deal with conjecture or suspicion, and on tho other hand they should not reject any inference which their common sense would enable them to draw.' Ho should say also that they should discard from their minds the legal discussions—for them no doubt somewhat arid—which had taken placo tlio preceding day on the question of nonsuit; becaiisc those discussions would havo'no bearing on what they had to consider. Those questions would perhaps htivo to ;be determined by tho Court at some later stage. .

A Company May Be Libelled. lathe first placo tlio action was between tv/o companies. They, had heard the preceding day the question discussed a3 to whether a company could bo libelled or not. Ho wished to lay down to them the law that a company might auo and, recover damages for a newspaper article casting injurious or defamatory reflections upon that company in tho way of the company's business. A company could sue in this way quite as freely as could an individual, so that if they should find that this article was defamatory to the "Times" Company in tho way of its business, they might have no difficulty in Teaching tho conclusion /that tho article was libellous, quite: asi much as if the plaintiff wero a private individual and not a company. Definition of Libol. , ■ \.

Ho must toll, them'.'. , next' as-well'as ho.could what a libel was. Broadly speaking, it was something printed or written p of and concerning someone, wliich held him..Tip to hatred, ridicule, or contempt, or , which was injurious to him.-jn his business. If matter of that kind was published concerning a person, without justification or excuse, th'ero was/libel. They must beartheso terms in mind and consider whether tho articlo !hel(l-up tho : "'rinie3"'Company to hatTed,, ridicule, or contempt so as to affect it in tho way of its business". If that had been done- without justifi«>»i>n or excuse, then the articlo would be a libel. Ho might put it in another way: if an articlo in a newspaper held up a newspaper company to contempt, hatred, or ridicule, so as to bo calculated to engender an evil opinion of tho .newspaper company in tho minds of righ'tJfhirlkln'g .men, and if ;such matter was calculated to affect thoi plaintiff in -its' trade or ' business, that matter would 'bV libellous. It would ,bo for them to say whether tho orticlo.in question in this caee was of that: nature. • •Were'- the terms used in it-such*'tie to affect tho company in the way of its trade or business: . Of course their own commoD sense would tell them that something written in extravagant terms, calling a man a lot of. names, was libellous. They would say at once oftsiicu' matter, "This is very libellous /stuff." , : But between what was self-evi-dent libel, and that'which' was not so,there were- degrees, and possibly this case was in one of the degrees—between nc{ libel a * an d a verv extravagant and'brutal defamation. fn-addition to iihat the libel as it was otou'gedTimist be published falsely. It

must have no' foundation in fact, and it must be published without lawful justification or excuse. These points would iiavo to bo discussed when lie came' to tho question of "fair comment."

.. The Issues for the Jury. Having got tJio article, the first question the jury Lad 1 to consider was whether the articlo was published of and concerning tho plaintiff company. In order that the matter might come beforo the jury clearly, tho questions (they had to consider had been split up. The issues wero-as follow: — • (1) Was the articlo in question . published of and concerning the plaintiff company? (2) Is the article defamatory ? (3) Is the article a fair and bona •fide comment on tho matter previously published by the "Times" in "tho newspapers put in evidence? (4) If defamatory, and not fair comment, to- what damages is the plaintiff company entitled ?

In regard to the question as to whether the article was published concerning the "Times" Company, his Honour said that it had' been contended on the one side on Friday that The Dominion article was merely an attack on tne newspaper—on tho- proprietors' goods, as it were—and not an attack on the proprietors themselves. It was thus argued that the article was an attack simply on the attitude and tendency said to have been disclosed by the articles in the "Times," on certain public questions, and that that ,w as something different to an attack on the proprietors in' their conduct of tho newspaper. On the other hand, it had been said that article was more than a mere attack of that kind, that it was something which was an attack involving 'the conduct of tho proprietors of the "Times"/ in the management of that newspaper. It had been urged by counsel for the plaintiffs that it was the proprietors of tho "Times," who were indirectly charged by ' The Dominion article, and that that article cast a reflection upon them. It would be for tho jury, as fair., and; reasonable men, to say if, taking the wholo of the article into consideration, it amounted to an attack on the newspaper merely, or whether it involved an attack on the proprietors also. ■

Attack upon Whom? If in the jury's opinion tho article waa an attack oh the proprietors, and not merely on .the newspaper, they could find that it was published concerning the proprietors. In this connection they must remember what tho business of the newspaper was. The business of tho .proprietors of the newspaper depended for its success on tho number of its readers and subscribers and the goodwill of tho advertisers. If it lacked these, it lacked success. If the. jury thought"that these charges were calculated to reduce the number of readers, and subscribers, or advertisers, they could find'that the article was published of and concerning tho proprietors in. the way of their business, and that it did not amount merely to an attack on the newspapor itself. His Honour thought that he should point out to tho jury respecting whether the articlo was an attack on the proprietors of tho "Times" Company, distinguished from tho newspapor, or on tho news r papor; that tho article did not directly discuss the Lyttelton election, but that its main point was tho attitude which the "Times" 'had adopted in relation to certain affairs.- It was only incidentally that tho Lyttelton election was dealt with in tho article, and the point of tho article was tho criticism which it made of the attitude of the "Times."

His Honour considered that he should point out, also, to tho jury that ,'i'iiE Dominion" in its article assumed that if. tho attitude aud tendency of tho "Times" wero such as they (The Dominion) suid they were, that that would result in a withdrawal of support on tiio part of tho business people. That was a passage in the articlo to which His Honour thought the jury should give special attention when dealing with the question as to whether it was an attack on tho news-' paper only or on the business of the proprietors.

How a Company May be Defamed. His Honour read from a judgment of tho Master of tho Rolls'-in the South Hotton Coal Company's case: "The Law of Libel is one and tho same as to all plaintilFs, and •.. in every action ot\ libel. Whether the statement complained of is not a libol bears' upon tho samo question, namely, whether tho jury aro ' of opinion that what has been , published with regard to plaintiff would tend in the minds of people of ordinary sense " Hero -His Honour interpolated: It is not the mind of tho lawyer who is struggling to find a libel or the mind of tho lawyer who is struggling to find there is no libel, but it is tho minds of people of ordinary sense. Not that I deny that lawyors have ordinary sense, but you must not bo carried away by possible extreme views placed on tho article by either side. Continuing, His Honour read: "—whether tho jury aro of opinion that- what lias been published, with regard to -plaintiff, would tend ;.. in the minds, of people of ordinary sense to bring' the plaintiff into contempt, hatred, or ridicule, or to injuro his character. The question is really the samo by whomsoever tho action is brought, whether a person, firm, or company, but though tho law is the same, and tho application of it is uniform even with regard to different kinds ■ of plaintiffs, there are statements which, with regard to some plaintiffs, would undoubtedly constitute libel, but which with regard to other plaintiffs would not have the same effect. . . . ." What the Jury Might Find. His Honour, commenting upon the case cited, and the instances (not here reproduced) of statements which would bo libellous as applied to' a person, but which could not be applied to a company, and which could not therefore be libellous upon a company, said that if the jury came to tho conclusion that tho article- was somothing more than an attack on tho newspaper as such, and that it implied that tho proprietors woro guilty of tho charges which tho "Times" said the article implied against them, then they would have no difficulty in finding that tho article was published of and concerning tho "Times" Company. If they 'found that tho article wos published of and concerning the "Times" Company in tho way of its business, then thoy would have to consider whether tho article was defamatory or not, whether tho matter of it was 1 such as to bo a disparagement of tho proprietors of the "Times" Comnany in the.

way in which they conducted . their newspaper. They could find that the article either boro.a disparaging or defamatory moaning, altogether outsido of the innuendo, or they might come to tho conclusion that the. meaning which had been attached to it by. tho innuendo was really to bo found in tho article.' Tho question of whether it was a libel or not was entirely for their consjdoration. It was not his function or his duty to discuss tho evidence and point out to them whether the statements woro libellous or not.'

What is "Fair Comment"? If they should find that tho article had been published concerning .the plaintiff company, and that on tho faco of it it was defamatory, then they would have to consider tho defence that the defendants had set up. The defendants' excuse, which was an excuso recognised at law, was that the nrticlo was fair, bona tide comment on an articlo published in the "Times" newspaper. If this defence was to be sustained, tho law required that tho comment must be on a matter of public interest. That, however, was not a question for the jury, because lie would hold for tho.purposes of this case that the article was discussing a, matter of public interest. They would have to consider whether it was a fair, bona fide comment on tho "Times" articles put in as evidence. Ho would tell tho jury what comment was. Comment consisted of inference drawn from facts. Comment in another sense implied an expression of opinion, such as criticism.

PJess Comment—lts Latitude. In regard to articles which were published in newspapers, or elsewhere, very full; latitude was given by the law. That was to «ay, that a man might on a question of public interest express his opinion with tho utmost freedom, provided that ho had a substantial basis of fact to go upon. The language used might not bo very nice —it might be severe —but in considering whether languago was libellous or not a jury need not troublo itself much as to whether the language was violent or not. This freedom to express one's opinion on public matters was considered to bo healthful to both public men and public institutions. So, according to English law, that free expression of opinion was allowed. But a man could not, under tho guiso of fair comment, use statements of fact and then escape. Ho.must observe tho. bounds of tho law. If it wae comment, it must bo comment and nothing more. If ono made statements which were not comment, ho did so at his risk if the statements were injurious. U hat the jury had .to decido in this question of fair comment LIKLL— SIX (c-course yyy:eC,fiGu4 was whether the articles and other matter in the "Times" warranted tho article which The Dominion published.'That was really tho particular issue fin tho question of public; comment. Tho jury would have to take tlioso articles and read them and consider them, and then form their opinion, as jeasonablo men acting with common sense, whether the contents of The Dominion article in question were justified or not. The jury had a ■ list of the papers and certain dates were given them, which, he took it, contained tho.most important matters on which the "Times'" Company relied, and which Tin: Dominion said formed the basis of tho article in question. ■ y

Inferences from "Times" Leaders. /_Tho'jury must then, ask themselves .whether the inferences which. The Dominion said it drew wero inferences which should have been drawn • by reasonable men from these previously published articles. AVero they deductions proper to,bo drawn, or which ought to have been drawn? As he had already said, the jury had to endeavour to distinguish between comment and fact. Tho caso for the "Times" was that this article in The Dominion was not merely comment; that it was statements of fact into which were put tilings injurious to the "Times" Company. The Dominion, on tho other haiid, said that tho articlo was all comment; that there was nothing iiu tho article which amounted to a statement' of fact. The task was the jury's to decido' which was so. One statement of fact which was relied on by the "Timos" was that The Dominion article amounted to a charge that tho "Times" had' advocated the encouragement and the support of the doctrines and tho methods of the United Federation of Labour, and thereby encouraged lawlessness and crifno. If that was regarded by tho jury as merely calling the "Times" names, then the jury had the material before them to determino whether it was a statement of fact that The Dominion was putting forward or not. If the. jury thought tho words wero injurious statements of fact, then the plea of fair comment-was at an end. If they found that tlio words were not purely comment, but had mixed up with them statement's of fact winch wero injurious to tho "Times" Company in its business, they need not consider fair comment any more; the whole thing would go by the board. But if, on tho other hand, they considered that the article was comment, and nothing more, and that it was-fair and bona fide, they could find the question in favour of The Dominion, Company; otherwise they must find tho question in favour of tho "Times" Company. In considering this ho would point out the fact that the article did not sot out any basis upon which to found its comments.. The articlo did not supply its own antidote, so that anyono who 'read it could not say whether it was correct or not without going back to previous nowspapers. Very often an articlo might fail in its effect because the basis upon which tho inference was made was set out, and a reader could judge for himself as to whether the conclusion arrived at was a proper one or noii. In such a caso an articlo provided its own antidote. In this caso there wero references to previous newspapers, but in that connection he would remark that this articlo might have been read by a new-comer who had never scon any of tho articles in tho "Times" which wero now produced.

"Malice or Malevolence," Further if tho jury found that tho article was fair comment, they would have to consider whether it was published with malice- or malevolence-. If the comment was iinjust or malevolent, or exceeding the bounds of fair comment, it was libel, and therefore- actionable. There was no evidenco outside of the article itself as to what were tho feelings that actuated tho publisher of the article They must gather that evidence from the article- itself. If the article did convince them that there was no malice in it, and that it was not malevolent, they would find accordingly, but if they found it had been published with malice and malevolently, witli a view of -injuring the "Times" Company, then they would find that the plea- of fair comment had not been sustained. If they came to tho conclusion that tho article was publisned concerning tho plaintiff company in the way of its business, that it was defamatory, and that it was not fair bona-fido comment, then they would liavo to consider tho question of damages.

Tho Question of Damages. No evidence was given of any particular that was sustained !>v tho "Times" Company, but that did not matter. If a. man published a libel on another man, tho law presumed that tho iwrson libelled had sustained damage, It might bo threat or it might bo small; the extent or tho damage was for the jury to assess. If they should find that tho articlo was defamatory, and not fair comment, they could begin with this — that the plaintiff was entitled to somo damages. He could hot help them further, beyond stating in tho most general tnrnis what had been laid down on the

subject. They would iiavo to consider carefully tlio whole of tho article ami tlio circumstances in winch it- was published. At tlio time it was published tlicro was a fooling of embittcrmeut between the strikers on tiis one hand aiul tlio business pcoplo on iW other. Then they would have, to consider what effect ■ such an article- was calculated in rea&on and probability to Tiave upon the supporters of the "Times" Company—iucluding advertisers in tho term ''supporters." This would bo a Matter tliej l would havo to estimate as best they could, treating tho matter reasonably nnd without feeling towards one side. oV tho other. Then they must also consider the nature of tlio charges— whether they wero serious- »r trivial. On tho ono hand it had been urged with great force that tlio charges were of an .exceedingly serious character. On the other hand, tlio charges had been described as 'really not charges at all, but a mere challenge. by ono newspaper to another to come into tho arena and light, that the effect of them wqs passing and cranes* cent. They would havo to consider whether tlio effect of snoli an article was likoly to be permanent-, or whether it was an effect that would, pass away, and bo forgotten by '■ everybody in the space of two or tl\reo clays or in a very short time. ' I

"Punitive Damages," Mr. Skorrott: I desito to ask Tcraf Honour whether, if they find that the charge is a gross one, and published maliciously, tho jury is Hot entitled to give exemplary or punitive damage ?

His Honour: If I have not aJrcady made it clear —if from the tone of the article you can draw tjio mferenoo that there was an attempt to maliciously injure tho •'Times"—you are justified in giving damages which mark your sense of such conduct , —damages, which ■ire to act a3 a deterrent.

Mr. Morisoii: If, on. .the oilier Jiauct, the languagu is euclt as is roasonalik newspaper comment, the damages shall be correspondingly loff. Mr. Skerrett: There can then bo iio damage. Mr. Morison: But niy friond has asked tlio jury to find damage.

His Honour: ... If it is not evident to you that tlicre \$ malice and 11-will in it, you will net give punitive diimage. 'Jury DiSßßrces. After a retirement of four hoars and twenty minutes, the jury returned to tlio Court. In answer'to His Son-oitr tho foreman said that there was "nit hope at all" ot' a unanimous or even ,i three-fourths verdict.

In reply to a question by His Honour, as to whether counsel desired to sulv mit any motion, . Mr. Skerrett recited that it- seeuiscl to him that no motion was necessary at tho moment, and that if lie shouM desire to movo any motion lie. could do ■so on Monday.

Hi? Honour, discliargiiiff the jury, thameed them for tlia close attewtioj. they had given to wTiafe had. proved a vdtiier intricate case.