“ In all civil actions for slander and libel the falsity of the injurious statements is an essential element, so that the defendant is always entitled to justify his statements by their truth; but when the statements are in themselves defamatory, their falsity is presumed, and the burden of proving their truth is laid upon the defendant. There are however a large class of false defamatory statements, commonly called privileged, which are not actionable on account of the particular circumstances in which they are made. ”

“ The second head included defamatory statements made in private, and in this case the offence lay in the imputation itself, not in the manner of its publication. The truth was therefore a sufficient defence, for no man had a right to demand legal protection for a false reputation. Even belief in the truth was enough, because it took away the intention which was essential to the notion of injuria. The law thus aimed at giving sufficient scope for the discussion of a man’s character, while it protected him from needless insult and pain. ”

“ It is assumed that in every case of defamation intention is a necessary element; but in the ordinary case, when a statement is false and defamatory, the law presumes that it has been made or published with an evil intent, and will not allow this presumption to be rebutted by evidence or submitted as matter of fact to a jury. ”

“ In civil cases the libel must be published by being brought by the defendant under the notice of a third party; it has been held that it is sufficient if this has been done by gross carelessness, without deliberate intention to publish. Every person is liable to an action who is concerned in the publication of a libel, whether he be the author, printer or publisher; and the extent and manner of the publication, although not affecting the ground of the action, is a material element in estimating the damages. ”

“ There are certain natural and proper occasions on which statements may be made which are in themselves defamatory, and which may be false, but which naturally suggest that the statements may have been made from a perfectly proper motive and with entire belief in their truth. ”

“ But in every case care must be taken not to exceed the limits of publication required by the occasion, or otherwise the privilege is lost. Thus defamatory statements may be privileged when made to a meeting of shareholders, but not when published to others who have no immediate concern in the business.
In a few instances in which an action cannot be maintained even by the averment of malice, the plaintiff may maintain an action by averring not only malice but also want of reasonable and probable cause. ”

“ It lies with the plaintiff to show that the defendant was actuated by what is called express malice, by an intention to do harm, and in this case the question is not one of legal inference for the court, but a matter of fact to be decided by the jury. Although, however, the theory of the law seems to rest entirely upon natural presumption of intention, it is pretty clear that in determining the limits of privilege the courts have been almost wholly guided by considerations of public or general expediency. ”

“ Thus words which merely reflect generally upon the moral character of a tradesman or professional man are not actionable, but they are actionable if directed against his dealings in the course of his trade or profession. ”

“ The earlier history of the English law of defamation is somewhat obscure. Civil actions for damages seem to have been tolerably frequent so far back as the reign of Edward I. There was no distinction drawn between words written and spoken. When no pecuniary penalty was involved such cases fell within the old jurisdiction of the ecclesiastical courts, which was only finally abolished in the 19th century. ”

“ In consequence of the latter defect and the indiscriminate application of the plea of veritas to every case both of damages and solatium, there appears to be no remedy in Scotland even for the widest and most needless publication of offensive statements if only they are true.
American Law.—American law scarcely if at all differs from that of England. In so far indeed as the common law is concerned, they may be said to be substantially identical. The principal statutes which have altered the English criminal law are represented by equivalent legislation in most American states. ”

“ Common examples of this kind of privilege are to be found in answer to inquiries as to the character of servants or the solvency of a trader, warnings to a friend, communications between persons who are jointly interested in some matters of business. ”

“ This protection does not cover the actual writer of the alleged libel.
In private life a large number of statements are privileged so long as they remain matters of strictly private communication. It is difficult to define the limits of private privilege without extensive reference to concrete cases ”