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Published material meeting three conditions: The material is defamatory either on its face or indirectly; The defamatory statement is about someone who is identifiable to one or more persons; and, The material must be distributed to someone other than the offended party; i.e. published; distinguished from slander.
Criminal Law. A malicious defamation expressed either in printing or writing or by signs or pictures, tending to blacken the memory of one who is dead, with intent to provoke the living; or the reputation of one who is alive and to expose him to public hatred, contempt or ridicule. It has been defined perhaps with more precision to be a censorious or ridiculous writing, picture or sign, made with a malicious or mischievous intent.
In briefly considering this offence, we will inquire: 1. By what mode of expression a libel may be conveyed; 2. Of what kind of defamation it must consist; 3. How plainly it must be expressed; 4. What mode of publication is essential.
The reduction of the slanderous matter to writing or printing, is the most usual mode of conveying it. The exhibition of a picture, intimating that which in print would be libelous, is equally criminal. Fixing a gallows at a man's door, burning him in effigy or exhibiting him in any ignominious manner, is a libel.
There is perhaps no branch of the law which is so difficult to reduce to exact principles or to compress within a small compass as the requisites of a libel. All publications denying the Christian religion to be true; all writings subversive of morality and tending to inflame the passions by indecent language, are indictable at common law. In order to constitute a libel, it is not necessary that anything criminal should be imputed to the party injured; it is enough if the writer has exhibited him in a ludicrous point of view; has pointed him out as an object of ridicule or disgust; has, in short, done that which has a natural tendency to excite him to revenge.
The case of Villars v. Monsley was grounded upon the following verses which were held to be libelous, namely: 'Old-Villers, so strong of brimstone you smell... As if not long since you had got out of hell... But this damnable smell I no longer can bear. Therefore I desire you would come no more here; You, old stinking, old nasty, old itchy, old toad... If you come any more you shall pay for your board... You'll therefore take this as a warning from me and never enter the doors, while they belong to J. P. Wilncot, December 4, 1767.'
Libels against the memory of the dead which have a tendency to create a breach of the peace by inciting the friends and relatives of the deceased to avenge the insult of the fanlily, render their authors liable to legal animadversion.
If the matter be understood as scandalous and is calculated to excite ridicule or abhorrence against the party intended, it is libelous, however it may be expressed.
The malicious reading of a libel to one or more persons, it being for sale on the shelves in a bookstore; and where the defendant directed the libel to be printed, took away some and left others; these several acts have been held to be publications. The sale of each copy, where several copies have been sold, is a distinct publication and a fresh offence.
The publication must be malicious; evidence of the malice may be either express or implied. Express proof is not necessary for where a man publishes a writing which on the face of it is libelous, the law presumes he does so from that malicious intention which constitutes the offence and it is unnecessary for the prosecution to prove any circumstance from which malice may be inferred. But no allegation, however false and malicious, contained in answers to interrogatories, in affidavits duly made or any other proceedings, in courts of justice or petitions to the legislature, are indictable. It is no defence that the matter published is part of a document printed by order of the house of commons.
The publisher of a libel is liable to be punished criminally by indictment or is subject to an action on the case by the party grieved. Both remedies may be pursued at the same time.
Practice. A libel has been defined to be 'the plaintiff's petition or allegation, made and exhibited in a judicial process, with some solemnity of law;' it is also, said to be 'a short and well ordered writing, setting forth in a clear manner, as well to the judge as to the defendant, the plaintiff's or accuser's intention in judgment.' It is a written statement by a plaintiff, of his cause of action and of the relief he seeks to obtain in a suit.
The libel should be a narrative, specious, clear, direct, certain, not general, nor alternative. It should contain, substantially, the following requisites: 1. The name, description and addition of the plaintiff, who makes his demand by bringing his action; 2 The name, description and addition of the defendant; 3. The name of the judge with a respectful designation of his office and court; 4. The thing or relief, general or special, which is demanded in the suit; 5. The grounds upon which the suit is founded.
The form of a libel is either simple or articulate. The simple form is, when the cause of action is stated in a continuous narration, when the cause of action can be briefly set forth. The articulate form is when the cause of action is stated in distinct allegations or articles. The material facts should be stated in distinct articles in the libel, with as much exactness and attention to times and circumstances as in a declaration at common law. Pompous diction and strong epithets are out of place in a legal paper designed to obtain the admission of the opposite party of the averments it contains or to lay before the court the facts which the actor will prove.