DEFAMATION AND LIBEL ORDINANCE

DEFAMATION AND LIBEL ORDINANCE

CHAPTER 21.

DEFAMATION AND LIBEL.

To amend the lau, respecting defamatory words and libel.

[22nd February, 1887.]

1. This Ordinance may be cited as the Defamation
and Libel Ordinance.

2. In this Ordinance-
'information' includes indictment;
'newspaper' and 'proprietor' have the same meanings
respectively as in the Printers and Publishers Ordin-
ance, 1927; and 'newspaper' includes any other
periodical publication ;
'report of the Legislative Council' includes any report,
paper, vote or other proceeding of the Council;

3. In any action for defamation it shall be competent
to the defendant (after notice in writing of his intention to
do so duly given to the plaintiff within a reasonable time
before the trial of the cause) to give in evidence in mitiga-
tion of damages that he made or offered an apology to the
plaintiff for such defamation before the commencement of
the action, or as soon afterwards as he had an opportunity
of doing so in case the action has been commenced before
there was an opportunity of making or offering such
apology.

4. In an action for a libel contained in any public
newspaper it shall be competent to the defendant to set up
as a defence that the libel was inserted in the newspaper
without actual malice and without gross negligence, and
that before the commencement of the action, or at the
earliest opportunity afterwards, he inserted in the news-
paper a full apology for the libel, or if the newspaper in
which the libel appeared is ordinarily published at intervals
exceeding one week, had offered to publish the said apology
in any newspaper to be selected by the plaintiff in the
action : and to such defence to the action it shall be competent
to the plaintiff to reply generally denying the whole of such
defence : Provided that it shall not be competent to any





defendantin such action to set up any defence as aforesaid
without at the same time making a payment of money into
court by way of amends, and every such defence so filed
without such payment into court shall be deemed a nullity
and may be treated as such by the plaintiff in the action.

5. Any person who maliciously publishes any de-
famatory libel, knowing the same to be false, shall be liable
to imprisonment, without hard labour, for two years, and,
in addition, to pay stich fine as the court may award. [6

6.Any person who maliciously publishes any defama-
tory libel shall be liable to imprisonment, without hard
labour, for one year, and to pay such fine as the court
may award. [7

7. (I) On the trial of any information for a defama-
tory libel, the defendant having pleaded such plea as is
hereinafter mentioned, the truth of the matters charged rnay
be inquired into, but shall not amount to a defence, unless
it was for the public benefit that the matters charged should
be published.

(2) To entitle the defendant to give evidence of the
truth of the matters charged as a defence to the information,
it shall be necessary for him, in pleading to the information,
to allege the truth of the matters charged in the manner now
required in alleging a justification to an action of defama-
tion, and further to allege that it was for the public benefit
that the matters charged should be published, and the
particular fact or facts by reason whereof it was for the
public benefit that the matters charged should be published,
to which, plea the prosecutor shall be at liberty to reply
generally denying the whole thereof.

(3) If after such plea the defendant is convicted on the
information, it shall be competent to the court, in pronounc-
ing sentence, to consider whether the guilt of the defendant
is aggravated or mitigated by the plea and by the evidence
given to prove or to disprove the same: Provided that the
truth of the matters charged in the alleged libel complained
of by the information shall in no case be inquired into with-
out such plea of justification : Provided, also, that in addi-
tion to such plea it shall be competent to the defendant to
plead a plea of not guilty: Provided, further, that nothing





in this Ordinance shall take away or prejudice any defence
tinder a plea of not guilty which it is now competent to the
defendant to make under such plea to any information for
defamatory words or libel. [8

8. Whenever, on the trial of any information for the
publication of a libel, under the plea of not guilty, evidence
has been given which establishes a presumptive case of
publication against the defendant by the act of any other
person by his authority, it shall be competent to the
defendant to prove that the publication was made without his
authority, consent, or knowledge, and that the publication did
not arise from want of due care or caution on his part. [9

9. (I) In the case of any information at the instance
of a private prosecutor for the publicat ' ion of any defama-
tory libel, if judgment is given for the defendant, he
shall be entitled to recover from the prosecutor the costs
sustained by the defendant by reason of the information,
and upon a special plea of justification to the information,
if the issue is found for the prosecutor, he shall be entitled
to recover from the defendant the costs sustained by the
prosecutor by reason of such plea.

(2) Costs so to be recovered by the defendant or pro
secutor respectively shall be taxed by the proper officer of
the court before which the information is tried. [10

10. It shall be lawful for any person who is a defendant
in any civil or criminal proceeding, in whatever manner
commenced for or on account or in respect of the publication
by such person or by his servant of any report of the Legis-
lative Council by or under the authority of such Council,
to bring before the court in which such proceeding has been
commenced, or before a judge, first giving twenty-four
hours' notice of his intention to do so to the plaintiff or
prosecutor in such proceeding, a certificate under the hand
of the Governor, or of the presiding member of such Coun-
cil for the time being, or of the Clerk of Councils, stating
that the report in respect whereof the proceeding has been
commenced was published by such person or by his ser-
vant by order or under the authority of such Council,
together with an affidavit verifying such certificate ; and the






court or judge shall thereupon immediately stay such pro-
ceeding, and the same, and every writ or process issued,
shall be and shall be deemed and taken to be finally put
an end to, determined, and superseded.

11. In case of any civil or criminal proceeding to be
commenced for or on account or in respect of the publication
of any copy of any such report it shall be lawful for the
defendant, at any stage of the proceeding, to lay before the
court or judge the report, and the copy, together with an
affidavit verifying the report, and the correctness of the
copy; and the court or judge shall thereupon immediately
stay such proceeding, and the same, and every writ or process
issued therein, shall be and shall be deemed and taken to be
finally put an end to, determined, and superseded. [12

12. It shall be lawful in any civil or criminal proceed
ing to be commenced for printing any extract from or ab
stract of any such report to give in evidence, in a civil case
in support of any allegation in defence, and in a criminal
case under the general issue, the report, and to show that
the extract or abstract was published bona fide and without
malice.; and if such is the opinion of the jury, a verdict of
not guilty shall be entered for the defendant. [13

13.A fair and accurate report in any newspaper of
proceedings publicly heard before any court shall, if
published contemporaneously, with such proceedings, be
privileged : Provided that nothing in this section shall
authorize the publication of any blasphemous or indecent
matter. [14

14. (1) A fair and accurate report published in any
newspaper of the proceedings of a public meeting, or
(except where neither the public nor any newspaper reporter
is admitted) of any meeting of a body, board, or authority
formed or constituted under the provisions of any Ordin-
ance or of any committee appointed by any such body,
board, or authoritv, or of any meeting of any commissioners
authorized to act by Letters Patent, Act of Parliament,
Ordinance, warrant under the Royal Sign Manual, or other
lawful warrant or authority, select committees of the Legis-
lative Council, and justices of the peace in licensing sessions





assembled, and the publication, at the request of any
Government office or department or of the Commissioner
of Police, of any notice or report issued by them or him
for the information of the public, shall be privileged, unless
it is proved that such report or publication was published
or made maliciously : Provided that nothing in this section
shall authorize the publication of any blasphemous or in-
decent matter : Provided, also, that the protection intended
to be afforded by this section shall not be available as a
defence in any proceedings if it is proved that the defendant
has been requested to insert in the newspaper in which
the report or other publication complained of appeared a
reasonable letter or statement by way of contradiction or
explanation of such report or other publication, and has
refused or neglected to insert the same: Provided, further,
that nothing in this section shall be deemed or construed to
limit or abridge any privilege now by law existing or to
protect the publication of any matter not of public concern
and the publication of which is not for the public benefit.
(2) For the purposes of this section, 'public meeting'
means any meeting bona fide and lawfully held for a lawful
purpose, and for the furtherance or discussion of any matter
of public concern, whether the admission thereto is general
or restricted. [15

15. A magistrate, on the hearing of a charge against
a proprietor, publisher, or editor, or any person responsible
for the publication of a newspaper, for a libel published
therein, may receive evidence as to the matter charged in
the libel being true, and as to the report being fair and
accurate and published without malice, and as to the pub
lication being for the public benefit, and as to any matter
which, under this or any other Ordinance or otherwise,
rnight be given in evidence by way of defence by the person
charged on his trial on information, and if the magistrate
is of opinion that there is a strong or probable presumption
that the jury on the trial would acquit the person charged
lie may dismiss the case. [16

16. If a magistrate, on the hearing of such a charge is
of opinion that, though the person charged is shown to
have been guilty, the libel was of a trivial character, and
that the offence may be adequately punished by virtue of





the powers of this section, he shall cause the charge to be
reduced into writing and read to the person charged, and
then address a question to him to the following effect-
'Do you desire to be tried by a jury or do you consent to the
case being dealt with summarily ?' and if such person assents
to the case being dealt with summarily; the magistrate may
summarily convict him and adjudge him to pay a fine of
two hundred and fifty dollars. [17

17. At the trial of an action for a libel contained in any
newspaper the defendant shall be at liberty to give in
evidence in mitigation of damages that the plaintiff has
already recovered (or has brought actions for) damages, or
has received or agreed to receive compensation in respect
of a libel or libels to the same purport or effect as the libel
for which such action has been brought. [18

18. (1) No criminal prosecution shall be commenced
against any proprietor, publisher, editor, or any person
responsible for the publication of a newspaper for any, libel
published therein without the order of a judge in chambers
being first had and obtained.

(2) The application for such order shall be made on
notice to the accused person, who shall have an opportunity
of being heard against such application. [19

19. (1) It shall be competent for the Supreme Court,
on an application by or on behalf of two or more defendants
in actions in respect to the same or substantially the same
libel brought by one and the same person, to niake an order
for the consolidation of such actions ; and after such order
has been made, and before the trial of the said actions, the
defendants in any new actions instituted in respect to the
same or substantially the same libel shall also be entitled to
be joined in a common action on a joint application being
made by such new defendants and the defendants in the
actions already consolidated.

(2) In such consolidated action the jury shall assess
the whole amount of the damages, if any, in one sum, but
a separate verdict shall be taken for or against each defen-
dant in the same way as if the actions had been tried
separately; and if the jury have found a verdict against the





defendant or defendants in more than one of the actions so
consolidated, they shall proceed to apportion the amount of
damages which they have so found between and against
the said last-mentioned defendants; and similar provisions
shall apply if the trial is before a judge without a jury.
The judge at the trial, if he awards to the plaintiff the costs
of the action, shall thereupon make such order as he may
deem just for the apportionment of such costs between and
against such defendants. [20

20. Any person charged with the offence of libel before
any court of criminal jurisdiction, and the wife or husband
of the person so charged, shall be competent, but not corn
pellable, witnesses on every hearing at every stage of such
charge. [22

21. Words spoken and published which impute un
chastity or adultery to any woman or girl shall not require
special damage to render them actionable: Provided that,
in any action for words spoken and made actionable by this
Ordinance, a plaintiff shall not recover more costs than
damages, unless the judge at the trial certifies that there
was reasonable ground for bringing the action. [23

22. Nothing in this Ordinance shall apply to an
ex officio information filed by the Attorney General or to any
information by the Registrar of the Supreme Court, by the
direction of the court, at the instance of some private
individual. [24
Originally 5 of 1887. Fraser. 1 of 1887. Short title. Interpretation. 44 & 45 Vict. C. 60, s. 1. (25 of 1927.) Admissibility in evidence, in mitigation of damages in action for defamation, of apology. 6 & 7 Vice. C. 96, s. 1. Right of defendant in action for libel to plead absence of malice, etc. and apology. 6 7 & Vice. c. 96, s. 2. 8 & 9 Vice. c. 75, s. 2. [s. 4 cont.] Publishing libel known to be false. 6 & 7 Vice. C. 96, s. 4. Publishing defamatory libel. 6 & 7 Vict. C. 96, s. 5. Trial of information for defamatory libel. 6 & 7 Vict. C. 96, s. 6. Evidence to rebut prima facie case of publication by agent. 6 & 7 Vict. C. 96, s. 7. Right of prosecutor and of defendant to costs on prosecution for private libel. 6 & 7 Vict. C. 96, s. 8. Stay of proceeding against person for publication of papers printed by order of Legislative Council upon certificate and affidavit of authority to publish. 3 & 4 Vict. c. 9, s. 1. [s. 10 cont.] Stay of proceeding when commenced in respect of copy of authenticated report, etc. 3 & 4 Vict. C. 9, s. 2. Defence in proceeding for printing extract from report, etc. 3 & 4 Vict. C 9, s. 3. Privilege of newspaper report of proceedings in court. 51 & 52 Vict. c. 64, s. 3. Privilege of newspaper report of proceedings of public meeting and of certain bodies and persons. 51 & 52 Vict. c. 64, s. 4. Inquiry by magistrate as to libel being true, etc. 44 & 45 Vict. C. 60, s. 4. Provision as to summary conviction for libel. 44 & 45 Vict. C. 60, s. 5. [s. 16 cont.] Power to defendant to give certain evidence in mitigation of damages. 51 & 52 Vict. C. 64, s. 6. Order of judge required for prosecution of newspaper proprietor, etc. 51 & 52 Vict. C. 64, s. 8. Consolidation of actions. 51 & 52 Vict. C. 61, s. 5. Person charged may give evidence. 51 & 52 Vict. C. 64, c. 9. Words imputing unchastity to woman or girl per se actionable. 54 & 55 Vict. C. 51, s. 1. Saving as to ex officio informations.

Originally 5 of 1887. Fraser. 1 of 1887. Short title. Interpretation. 44 & 45 Vict. C. 60, s. 1. (25 of 1927.) Admissibility in evidence, in mitigation of damages in action for defamation, of apology. 6 & 7 Vice. C. 96, s. 1. Right of defendant in action for libel to plead absence of malice, etc. and apology. 6 7 & Vice. c. 96, s. 2. 8 & 9 Vice. c. 75, s. 2. [s. 4 cont.] Publishing libel known to be false. 6 & 7 Vice. C. 96, s. 4. Publishing defamatory libel. 6 & 7 Vict. C. 96, s. 5. Trial of information for defamatory libel. 6 & 7 Vict. C. 96, s. 6. Evidence to rebut prima facie case of publication by agent. 6 & 7 Vict. C. 96, s. 7. Right of prosecutor and of defendant to costs on prosecution for private libel. 6 & 7 Vict. C. 96, s. 8. Stay of proceeding against person for publication of papers printed by order of Legislative Council upon certificate and affidavit of authority to publish. 3 & 4 Vict. c. 9, s. 1. [s. 10 cont.] Stay of proceeding when commenced in respect of copy of authenticated report, etc. 3 & 4 Vict. C. 9, s. 2. Defence in proceeding for printing extract from report, etc. 3 & 4 Vict. C 9, s. 3. Privilege of newspaper report of proceedings in court. 51 & 52 Vict. c. 64, s. 3. Privilege of newspaper report of proceedings of public meeting and of certain bodies and persons. 51 & 52 Vict. c. 64, s. 4. Inquiry by magistrate as to libel being true, etc. 44 & 45 Vict. C. 60, s. 4. Provision as to summary conviction for libel. 44 & 45 Vict. C. 60, s. 5. [s. 16 cont.] Power to defendant to give certain evidence in mitigation of damages. 51 & 52 Vict. C. 64, s. 6. Order of judge required for prosecution of newspaper proprietor, etc. 51 & 52 Vict. C. 64, s. 8. Consolidation of actions. 51 & 52 Vict. C. 61, s. 5. Person charged may give evidence. 51 & 52 Vict. C. 64, c. 9. Words imputing unchastity to woman or girl per se actionable. 54 & 55 Vict. C. 51, s. 1. Saving as to ex officio informations.

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