Landmark Cases in Defamation Law

David Rolph, David Rolph

• Publisher: Hart Publishing
• Year: 2019
• ISBN:
  9781509916740
• Edition: 1
• Topic: Jura
• Subtopic: Rechtstheorie & -praxis

Landmark Cases in Defamation Law is a diverse and engaging edited collection that brings together eminent scholars from the United Kingdom, the United States, Australia, Canada and New Zealand to analyse cases of enduring significance to defamation law. The cases selected have all had a significant impact on defamation law, not only in the jurisdiction in which they were decided but internationally. Given the formative influence of English defamation law in the United States, Australia, Canada and New Zealand, the focus is predominantly on English cases, although decisions of the United States and Australia are also included in the collection. The authors all naturally share a common interest in defamation law but bring different expertise and emphasis to their respective chapters. Among the authors are specialists in tort law, legal history and internet law. The cases selected cover all aspects of defamation law, including defamatory capacity and meaning; practice and procedure; defences; and remedies.

1

Campbell v Spottiswoode (1863)

PAUL WRAGG

‘And the Saturday would have had a column of sneering jocosity
on the irrepressibly sanguine temperament of authors’¹

I.INTRODUCTION

The facts of Campbell v Spottiswoode (‘Campbell’) are well-known: Spottiswoode, the publisher of the Saturday Review (known colloquially as ‘the Saturday’), had printed an article called ‘The Heathen’s Best Friend’ (‘the Heathen article’), about Campbell, a proselytiser, which alleged he was defrauding his followers. Its significance, though, is more debatable. On Tuesday, 30 June 1863 (several months after it was decided), the Sydney Morning Herald presciently declared ‘[it] will stand among the landmarks of law, and will be often appealed to in similar questions … ’² This was certainly Lord Phillips’s view of it in 2010, when he said it is ‘perhaps the most important foundation stone of the modern law of fair comment’.³ What, though, did it decide? Commentators at the time were uncertain, as Mitchell notes: they agreed that Campbell disentangled fair comment from qualified privilege, but could not agree on what this meant: was fair comment now the companion to justification? Was it something else? Was it even a defence?⁴ Partially, the problem is explained by the concepts of fair comment, qualified privilege, and justification lacking the neat distinctions of today.⁵ But it was also not helped by the ambiguity of the phrase ‘privilege’ which is used prominently in Campbell (and prior cases) to describe qualified privilege (as we know it) as well as fair comment and justification. Indeed, even in 1906, the Court of Appeal noted the problem this ‘etymological inexactitude’⁶ caused in elucidating the concept of fair comment. Allied to this, judicial fickleness toward Campbell, in which the case has fallen into and out of favour, has introduced the danger of seeing the case through modern perspectives. Consequently, a sort of Chinese whispers has seen the case assume a significance and meaning now that, arguably, it never had.

Instead, it will be argued, the court’s view, in Campbell, of the distinction between fair comment and qualified privilege (and justification) was less radical. For them, the case facts raised no new points of law. The novelty of the case lay with counsel’s argument that the imputation of dishonesty was the same as the imputation of folly or wrongheadedness: all were capable of being matters of fair comment where the underlying facts supported the opinion. In the court’s view, this argument could not succeed (though there was some disagreement about why). In retrospect, then, although courts and commentators have used Campbell to tease out important distinctions between fair comment and qualified privilege, this was not the court’s intention. Indeed, qualified privilege (as we know it) was never pleaded (nor was justification). This more prosaic account arises from the contemporary newspaper reports of the trial, and a greater understanding of the characters involved in the trial, especially, the redoubtable Rev Dr John Campbell, whose claim it was.

II.THE FACTS

A.Dr Campbell is ‘not altogether unknown’

The Reverend Dr John Campbell was a colourful character. Born in Scotland, in 1795, he moved to London in 1829, and died there in 1867 (some four years after his successful libel suit).⁷ He was a zealot, a fierce antagonist and a wily businessman. He wrote prodigiously, including books, pamphlets, letters and newspaper articles. He also part-owned British Standard and Ensign – the newspapers at the centre of the Campbell litigation. Such endeavours prompted a commentator to dub him ‘the most bustling man in … the Dissenting world of London’.⁸

His nature seems well-captured in an anecdote from the mid-1830s. When Campbell moved to London, he was co-pastor at two chapels (George Whitfield’s chapel on the Tottenham Court Road and the Tabernacle in Finsbury). In 1834, Campbell had ‘a serious difference with the Trustees of Tottenham Court Road about the exclusion of a member of the congregation’.⁹ This resulted in his dismissal. Whilst the specifics are unknown, it is known that Campbell did not go quietly. Or at all. For we are told, in the Metropolitan Ecclesiastical Directory (‘Directory’) of 1835, that Campbell’s successor – Rev Ragsdell – was prevented from taking up his ministration of the chapel: every time he tried to hold a service, Campbell would ‘attend and demand the pulpit’¹⁰ and, once rebuffed by Ragsdell, would leave and take the congregation with him.

But Campbell prevailed. By, at least, 1850, he had returned to both chapels as minister. Yet – and here is a hint of how Campbell’s pecuniary interests courted controversy – he preached at neither.

He still held the pastorate, resided in the parsonage, and drew the salary; but he supplied his pulpit by employing, for a few weeks at a time, the most popular ministers that could be employed, to preach to his people … [whilst he] gave his time to the editing of [his] papers.¹¹

It should come as no surprise that Campbell was not universally liked. As one former colleague put it:

I found Dr Campbell to be an earnest, but a very belligerent, man. He was always given to controversy. To use an American expression, he was given to ‘pitching into’ everybody and everything that did not correspond with his views. In this way he did a great deal of good; and occasionally, I fear, some harm.¹²

Campbell’s ‘zeal’ saw him lose a libel case.¹³ On another occasion, he lost his popular support by ‘unwisely’ entering the fray over a controversial hymn book¹⁴ (controversial because Dissenters like Campbell thought it lacking in Evangelical truth).¹⁵ It was this that caused Campbell to commence the British Standard.

It is unsurprising, then, that, in the Heathen article, the Saturday should refer to Campbell as ‘not altogether unknown’. Indeed, he was well-known to George Spottiswoode, the publisher of the Saturday, whom Campbell sued. In November 1840, his father, Andrew, felt Campbell’s wraith over a dispute about the monopoly then existing for the right to print the Bible. As King’s Printer, Andrew had defended his right, in a letter to The Times, in which he expressed fear that ‘well-intentioned people’ might be ‘deceived’ by Campbell: ‘I cannot but look upon the barefaced assertions … as a deliberate misrepresentation to catch the unaware, to assist in forming an opposition Bible Society, and to raise a subscription. His own statements, in fact, prove it to be so’ (emphasis added). To this, Campbell published a long and theatrical response, in which the phrase ‘I charge Mr Spottiswoode with misrepresentation!’ (emphasis in original) is a constant refrain. Note, though, the allegation of financial dishonesty made by Spottiswoode.

The Saturday’s reference to Campbell’s notoriety, though, alludes to a previous article about him written in August 1861, entitled ‘The Rev Dr Campbell, The Last Defender of the Faith’ (‘the Defender article’). (We can assume this is the first – possibly only other – article written about Campbell since it states, ‘we never heard of Dr Campbell hitherto’.) This ridiculed Campbell for his part in a hoax (which the Saturday may have implemented). Campbell had written letters to Prince Albert accusing him of being a Jesuit.¹⁶ He published these in the Ensign and British Standard (and, later, a handy volume) and encouraged his followers to buy multiple copies for distribution amongst the ignorant. Later, he published encouragement received from ‘Rev Henry Wilkins’, who praised his efforts – and was mocked by the Saturday for doing so: ‘Alas! For human credulity. It might have occurred to anybody of less boundless vanity and matchless impudence than the editor of the British Standard to look at the Clergy List … [since the correspondent] only existed in the ingenious imagination [of a hoaxer]’.

Two features of this article relate to the Heathen. First, the allegation that Campbell’s chief motivation was profit appears here: ‘Among other dodges for circulating his newspaper, [Campbell] started the scheme of getting contributions to “assist in distributing 100,000 copies of the Ensign.” This is the euphemism of Dr Campbell for pocketing exactly 100,000d.’ Secondly, the Saturday mocks the reference to the ‘Honourable Charlotte Margaretta Thompson’, who, Campbell claims, is pivotal to the success of scheme by subscribing generously. These two features tell us much about the Saturday’s grounds for the claims they would later make in the Heathen article; it is why they thought Campbell was a swindler (as Andrew Spottiswoode had too).

That later scheme, as with this one, involved Campbell writing more letters, this time to Queen Victoria herself, imploring the Queen to evangelise the Chinese ‘heathen’. As before, he implored his followers to buy multiple copies of his letters (published in the British Standard and Ensign) to fund missionary work in China. ‘He addressed his readers as his friends of truth as it is in Jesus, and after speaking of the salvation of man and the glory of God called upon them to increase the circulation by five times what it was on the publication of the Prince Consort letters’.¹⁷ Also, as before, Campbell praised the ‘noble example’ of Mrs Thompson, who had pledged 5,000 copies, and also, the Earl of Gainsborough, the Earl of Shaftesbury, and various anonymous individuals, including those described as ‘R.G’, ‘a London Minister’ and ‘an Old Soldier’.

B.The Saturday Review: ‘One thing I always like to have – … hatred of the Saturday … and the love of God...