Ernest Belfort Bax

Problems of Mind
and Morals

Chapter XI
The Problem of Liberty and Libel

What is the raison d’etre of the law of libel, civil and criminal, and in how far does such a law infringe the principle of the liberty of the Press? The main purpose of a libel suit is supposed to be the clearing of character of false and calumnious aspersion. The effect of the English law of libel in its administration as at present obtaining is to draw into the net of the libel action practically anything that may be said by way of criticism of any person or group of persons. In other words, the existing law of libel is a direct infringement of the principle of liberty of the Press. No distinction is made between a definite allegation, such as that A stole a £10 note from B’s pocket in the year 1910, and the statement of the writer’s opinion, as an opinion, without quoting facts in support of it, that A is not a trustworthy person. Now, the bringing to book of the maker of a false assertion of a damaging character, as in the first case supposed, may certainly justify the intervention of the law without involving any real infringement of the liberty of the Press. The same remarks apply to the insinuations of a writer that he has something “up his sleeve,” which, “if he listeth,” etc. As much cannot be said for the second of the cases supposed. If liberty of the Press is not to be a meaningless phrase, any writer clearly ought to be allowed to publish an expression of opinion on any person, at least if he be in any capacity before the public. The opinion expressed may be utterly wrong, unjust, and unwarranted, but that ought not to hinder the absolute right of the holder of such opinion to give expression to it. If it is wrong, the remedy for this wrong lies with public opinion. People of ordinary intelligence will not accept an opinion of this sort without evidence. And in so far as this elementary principle of justice and fair play is observed, no harm can come from the expression of any opinion as such, however unjustified it may be. So much for the case of an injurious opinion destitute of all foundation whatever.

But in nine cases out of ten a published opinion of this nature is not entirely destitute of foundation. Its justification may have varying degrees of completeness, from a mere rebuttable suspicion to something like moral certainty. Yet, however great may be the grounds of justification of the opinion expressed, this does not shield a writer expressing such opinion from the terrors of the law of libel. A distinction which is obviously fair is never drawn between the degree of evidence justificatory of the expression of an adverse opinion, direct or indirect, regarding a person, and the evidence that ought to be required before a prisoner in the dock is convicted of an offence. It is a very different thing to publicly express an adverse opinion concerning a man, and to send him to gaol. In the latter case it is undoubtedly right to exact the most rigidly clinching evidence before conviction. In the former case a very much lower degree of probability ought to justify.

As regards the existing law of libel and the way it is administered, there is no doubt whatever that it acts as a powerful weapon for the shielding and aggrandisement of rogues. Cases are known of doubtful characters who have made a good living out of libel actions. Any published statement not laudatory of the subject of it is nowadays adequate ground for taking proceedings for libel. The matter, from the point of view alike of the liberty of the Press and from what is known as the “public interest,” is getting serious. But what is the remedy? The remedy which lies nearest to hand would seem to be to effectively render the average plaintiff in libel actions odious to public opinion. No opportunity should be lost to pillory the plaintiff in a libel suit. Those opposed to the present state of things should not tire of pointing out that the winner of an action for libel is by no means necessarily the injured innocent he makes himself out to be. It should be ceaselessly impressed upon the average man that the winning of a libel suit does not mean the clearing of character, and that there is not even any guarantee that the statements complained of are not substantially true. The aim should be to introduce a social boycott of the plaintiffs in all frivolous and doubtful cases. Until a sufficiently strong body of public opinion is set in motion nothing will be done. Such a prejudice against plaintiffs in libel actions does, I believe, obtain in some of the states of the North American Union, where the libel action, although nominally existing, is practically inoperative. The result is that the worst excesses of yellow journalism in the matter of vilification do no harm to honest men, as no one pays any attention to them, while the rogue has no legal fence behind which he can skulk, and by which the confraternity of rogues can exercise a terrorism over the Press in order to prevent the actual, if technically unprovable, truth about themselves from being made known.

It must not be supposed, however, that the libel action, with its casting in damages, is the only way of dealing with an unjustifiable aspersion on character on the part of the Press. In the case of a journal the law might very well compel an editor to insert a denial or exculpation of the defamatory statement running (say) to two columns, and this on the first issue of the publication after such communication was received. Failing such immediate publication, an injunction might be obtainable preventing any further issue of the journal in question not containing the rebutting communication. To an editor overcharged with important matter awaiting publication this might in itself be no light punishment. [1]

The unfairness with which the precious “remedy” provided by the English statute-book against aspersed character acts is obvious. In the first place, it compels persons whose character has been in truth wrongfully attacked by some lying organ of the Press to bring a libel action whether they will or not on pain of the false allegations made against them being accepted by the public in default. The really innocent person would in most cases much prefer it if the law would allow him to treat the matter with contempt, relying on his character and reputation as sufficient protection in the eyes of the public. But the legal interest does not see the matter in this light, and has no intention, if it can be helped, of relinquishing such a mine of professional profit as the libel action; and judges, acting apparently as guardians of the interests of the great legal trade union, naturally encourage the bringing of these actions.

The unfairness to non-litigious persons of the present state of the law, forcing such willy-nilly to bring libel suits in sheer defence, is bad enough, but worse remains behind. For while any ordinary person can obtain damages, often vindictive damages, for some trivial statement or expression of opinion concerning themselves which displeases them, a man known to hold unpopular opinions (say he is an atheist, a militant Socialist, an anti-jingo, etc.) can obtain no redress for the most serious allegations against his character, allegations that would gain for an ordinary respectable Philistine swingeing damages from a sympathetic and indignant judge and jury. The cases of Mr J.M. Robertson, M.P., of Mr W.E. Williams, and of Mr Edmondson will bear out what is here said. Mr Robertson, the Secularist lecturer, was wrongfully accused of taking part in an improper publication by a Conservative organ. Mr Williams, the Socialist and Labour agitator, was described as a “loafer” by a paper to whom his views were objectionable; and Mr Edmondson, also a well-known Socialist, who had, of his own accord, gone out to fight in the South African war, was designated a “coward” similarly by an organ of public opinion opposed to his political principles. Needless to say, verdict for the defendant in all these cases. Now, for my own part, I don’t think calling a man a “loafer” or calling him a “coward” either, both of which are mere expressions of opinion, views widely differing as to their applicability in any given instance, ought to be actionable, or to render the person using these expressions liable to pains and penalties; in fact, in common with many others, I should regard the act of deliberately going out to fight against the Boer Republics as more morally disgraceful than any act of cowardice from the military point of view committed an the field. But the fact remains that, if used of the respectable Philistine, the above expressions would undoubtedly enable the latter to obtain a heavy sum of money. Hence the remedy provided by law as at present administered is practically only available for him whose views are not known to be distasteful to the ruck of middle-class “respectability.” On him the law of libel, and those who administer it, smile with favour, rogue though he may be. But woe betide the man of heterodox views, however untarnished his honour!

The protection of characters that are worth anything does not in most cases require the intervention of the law, which it can easily be seen does more harm than good. The real remedy lies in the education of public opinion to prove all things relevant thereto before accepting allegations in aspersion of character, and to be always mindful of the fact that though A may have a perfect right to express any opinion he likes of B, yet that the fact of his expressing it does not prove his statements to be of any value whatever. Public opinion, if it sets its mind to it, is quite capable of dealing with persons or journals carelessly or maliciously publishing libels as it deals with other forms of objectionable social conduct.



1. It may be remarked that the principle of the above suggestion is already embodied in the French Code, in the Press Law of 1881, Art.12, which provides, under penalty of a fine, for the insertion, within three days of its reception, of any explanatory or rectificatory matter up to double the length of the article complained of.


Last updated on 15.10.2004