30° Novembris, 1927.]

[Continued.

to

secure a money payment for his quiescence. From this has arisen what one may almost call a legalised form of blackmail against authors and publishers. In all publishers' agreements nowadays there is an indemnity clause by which the author undertakes to hold harmless the publisher from any consequences of libel in the work for which the contract is being made. As a rule this clause is drawn very widely, so that the publisher is given fillest powers to deal with the matter as he thinks wisest. Thus it may happen that even when the author would wish to defend an action he cannot do

So.

The matter is settled by the publisher. Apparently it has become the definite policy of most publishers and nearly all newspaper proprietors not to fight legal actions and not to resist the threat of such actions beyond a certain point. They prefer to pay what they consider baseless and a extortionate demand rather than suffer the trouble, expense, and discomfiture, of attempting resolutely to repel it."-If I would not weary the Committee, I would like to elaborate the point of negligence. would like to give an instance that really might amuse the Committee. My publisher, some time ago, sufficiently soon after the War for the war feeling to be still rife, showed me a novel that he was just about to issue. He said that he anticipated a great success because it had in it the elements of surprise and sensation, and he asked me to look at it. I saw at once that the story was of an English nobleman who during the War had betrayed his country and acted as a German spy, and the name of this fictitious nobleman was "Lord Wenlock." i said at once to the author that I thought there was an element of surprise and sensation in the book for him, as well as for the public, but the actual Lord Wenlock might have something to say. Fortunately it was not too late, the book was not issued, so he was able to sacrifice his first edition, change the name, and get another one. That struck

me as a striking instance of an author's negligence, because, after all, he could so easily have verified it.

Then again,

rather curiously, it does happen that Sometimes Peers of the Realm take their titles from novels. Years ago I wrote a novel myself and I invented two English noblemen, and I called them "Lord Colwyn and "Lord Stonehaven." Well, now those titles are actu

ally used, but of course I have no redress against their Lordships, and, even as the law stands, I understand they cannot go for me for libel.

Lord Stanley of Alderley.] There is no copyright in titles?-No. This book is still selling; I have always expected to get possibly a remonstrance from some friends of theirs. The point I was going to make was this. Take the House of Lords, there is no excuse for using the name of a Member of that House, and in the case of the House of Commons, there is no excuse, but in the case of the House of Commons

it becomes a little more difficult, because so many of the Members of the House of Commons have retired and they are more difficult to trace. Then great advocates, lawyers, barristers, at any rate, are fairly easy. The Army is very difficult now. One invents a name, say Colonel Planker. It is very difficult to trace in any Army List whether a Colonel Planker exists. When we come down to auctioneers and house agents, it is practically impossible not to tumble on to a name that exists. In the case of subsidiary characters, an action for libel may be founded on a mere allusion. One may say: "Mr. Jones, the house agent who let my aunt down so badly in that deal." There was really a case some time ago I am sorry I have not the absolute facts of it but it amounted to this. Some such thing as this was said: "Mr. Jones," we will say, "the inefficient house agent." The country of this book was ficcitious in the sense that there were no names of towns. They were called Churchtown, and other invented names, but it was mentioned that it was more or less in the west of England, and in the book there was a description of a cathedral town. This cathedral town was often mentioned. It was said that it was a drive of about eight miles to the cathedral town from another place; it was said that two hours' journey from Salisbury brought them home. With those co-ordinating points they located the cathedral town as Exeter, and they located a little seaside place as the only possible seaside place eight miles off and answering some other description, and up rose a Mr. Jones, probably a rascally house agent and I am not sure that he did not say that this allegation of rascality had been made before, so that it nailed it home to him.

10. You mention in your statement the case in which insgnificant people and so forth, whose names have been used, are very numerous. Can you give us any idea of how many cases have come within your knowledge?-Mr. the Thring, Secretary of our Society, is here, and he would be more versed in it than I am. I was talking to him recently about it, and roughly I should think we hear of about half a dozen to a dozen cases a year, but very many of them, even we do not hear of from the authors. We have a membership of about four thousand people. Perhaps an author rings up the Secretary and tells him roughly of the case, and from that moment it passes out of our hands and it is in the hands of the publisher and his solicitors, and we do not have any further regard to it.

11. You do not undertake the defence of the authors in such cases?-We do in certain cases, but many of our members are very prosperous and they perhaps prefer to work with their own solicitors. (Mr. Thring): We do not take up libel cases. (Mr. Maxwell): Mr. Thring tells me that in our Society we should not take up the defence of a libel action. (Mr. Thring, If it is a literary libel, we should defend it, but not otherwise.

Lord Stanley of Alderley.

12. What exactly is the difference between a literary libel and another libel? -If it is a libel on their work as an author.

Chairman.

13. I did not mean that; I meant when an author is attacked by somebody outside for having used that person's name? -No, we do not defend in those cases.

14. You do not do as the corresponding Society of Doctors do, namely, undertake the defence and bear part of the costs, and so forth? (Mr. Maxwell): No, my Lord; not in a case of libel like that.

Lord Gorell.

15. Would it not be true to say that we have not done so because of the cost, but that we are competent to do so?That is exactly so.

Mr. Harney.

16. You are no different from an Association of Shippers and business men in that way?-I imagine not.

17. You deal with the matter if there is an attack made against the whole system? Yes. As Lord Gorell has pointed out, we are not a very rich body. Authors as a class are a poor downtrodden lot, so we should be very often estopped for want of funds.

20. Is there any striking case you could give us in which there was no negligence on the part of an author and yet he has been attacked and made to pay?-Yes.

21. You have given us a case where there clearly was negligence on the part of an author in selecting a name?-Does it matter my mentioning names?

22. If you think it is desirable not to mention names, you need not do so.There was this case, roughly. A very well-known writer recently made an unfortunate allusion to a drunken or stupid owner of motor boats in the Channel Islands. Now that was taken up by one particular owner of motor boats. There were very few, and one of them, I believe, had some slight reputation for excess in alcohol, and he started proceedings or threatened proceedings. That case was settled, but it caused a very great deal of trouble. It was settled by a payment of the author and publisher; they bought the man off.

30° Novembris, 1927.]

[Continued.

Lord Gorell.

23. Was the name ever mentioned in that case? I do not think it ever came into Court.

24. Was the name of the owner of the motor boat mentioned in the book?No, I do not think so.

Sir William Bull.

25. Only described?-Only described. That was simply a misfortune. The authoress had never heard of the man.

Lord Gorell.

26. In fact, I think she had not been in the Channel Islands very long?—No, she had been a summer visitor, or something like that.

Mr. Harney.

27. Do you recognise any distinction between an Inevitable bodily injury where it is caused by a person without intent and without carelessness, and an inevitable injury to the feelings or the reputation of a person where equally it is caused without, intent or carelessness? -No, I would not myself recognise any difference.

Mr. Kennedy.

28. Does your Society include journalists? Yes, journalists, composers, playwrights and a few artists.

29. Have you got any large number of journalists?-Not proportionately to our whole membership of four thousand, but we have a goodish few-prominent journalist like Lord Riddell, Lord

Burnham and others.

30. Not journalists so much as proprietors? They are supposed to be authors.

31. It seems to me that in the wellknown case that gave rise to this question, of Artemus Jones, Mr. Artemus Jones, undoubtedly an aggrieved person, would have had no remedy, because the journalist who was responsible said that he had no knowledge of Mr. Artemus Jones, and it was admitted that there was no intention to refer to him as a barrister, yet injury to him as a barrister might have been very serious. Would you leave him without any redress?—No,. I am not prepared to go so far as that.

32. To what extent would you give him redress? That is exceedingly difficult to answer, because of the legal side of it. To begin with, Artemus Jones showed.

real damage. He was a barrister by profession; but in so many of these cases the damage is non-existent.

33. Then that can be dealt with, can it not, by the jury?-Unfortunately, we cannot afford to let the thing go to a jury.

Lord Gorell.] If I might intervene for a moment, under the Bill I think that Artemus Jones would still have had his remedy, because he was a well-known K.C., and the author was negligent in using the name of a K.C.

Lord Stanley of Alderley.

34. Was Artemus Jones at that time a K.C.; he was a junior barrister on the Northern Circuit?-But was he not a Member of Parliament at the time?

Mr. Kennedy.] No, he was a junior barrister.

Mr. Harney.] Would not all the circumstances be admissible in regard to negligence? Suppose I did, by the negligent swinging back of my golf-club, seriously injure a man; he is injured, but he does not get damages if I did not intend to do any harm and if I was not negligent. Why should a man be placed in a different position because, not his body is hurt, but his feelings and his reputation are hurt, provided that there was no negligence on the other person's part?

Mr. Kennedy.] If that point of view were accepted, it would abolish the whole law of libel.

Mr. Harney.] No, the law of libel is based upon intention.

Mr. Ker nedy.] It is not necessary to prove any intention.

Mr. Harney.] It is based upon the presumed intent and knowing the consequences of what you are doing.

Lord Stanley of Alderley.] We are rather wandering into the question at large. Might I suggest that we should follow up the evidence of the witnesses and go to general matters later on.

Chairman.] Yes, I think so.

35. I do not think you gave us any idea of the number of cases; perhaps you would rather leave that to the Secretary? -I think he would be more competent, but roughly there come to our office about six or a dozen cases during the year.

[Continued.

30° Novembris, 1927.]

36. On an average, of course; sometimes there would be more and sometimes less? Yes. (Mr. Thring): This year we have had very few.

Chairman.] We had better take your evidence separately from that of Mr. Maxwell; I think that would be more convenient.

Lord Stanley of Alderley.

37. Six or a dozen cases of actions started or actions threatened?—(Mr. Maxwell): Actions threatened, in the widest sense.

Sir William Bull.

38. Cases that you hear of? Yes, cases that we hear of.

Lord Stanley of Alderley.

39. You have given the case of an action threatened of a blackmailing character. Can you give us any instance of actions actually brought and successful, where they come into Court?—No, I am afraid I have not information of that. I believe there was a case quite recently that did come into Court, of a very popular book, "The Constant Nymph,' that was written the other day. chiet characters were called " Sanger," and some representatives of the Sanger family, the circus people, arose in wrath about that and went for Heinemanns, and I believe that case did come into Court.

The

40. And the Jury, I suppose, laughed it out of Court?-That, I am sorry to say, I do not remember.

41. It is rather important, what happened when it came into Court?-I am sorry to say I am wrong. I believe that case did not come into Court; I believe it was settled by Messrs. Heinemanns. I would like again, if I may, to make that point, that the publishers now almost invariably settle the action.

Sir William Bull.

42. With or without the goodwill of the author? Sometimes without the goodwill of the author.

43. They do not ask his permission?— No.

Lord Stanley of Alderley.

44. But with the preliminary acquiescence of that, by his signing an agreement which entitles them to do so?Yes.

Chairman.

45. The rest of the statement, I think, is mainly argument. What you really want to do is to get a change made in the law as it stands at present. The law as it stands at present gives the person who has been inadvertently libelled a remedy; you want to take that away? -That is really so, my Lord.

Lord Stanley of Alderley.

46. In the case of speculative libel actions started in order to blackmail, will this Bill give the author any freedom in fact? We think it will.

47. Will not your publishers still prefer to settle the case, rather than go into Court with an uncertain prospect of being able to prove that the author really knew nothing about the libelled person? There are two injuries, I understand; there is the possibility of being blackmailed and there is the possibility of having an action brought, against which you have no defence in law. In the first instance, if this Bill is passed, no doubt you might defend it in the Courts, but the tendency of the publishers will still, I take it, be rather to pay £20 or £10 to get quit of it?-To buy off.

48. To buy off rather than to go into Court? I think that their attitude will immediately stiffen in response to the changed conditions, and that they will then fight everything.

Mr. Harney.

49. Is there a very much greater risk, do you think, as the law stands at present, of the damage being proved, than would be the risk of its being proved that there was intent behind it?-Yes, we think very much greater risk.

Chairman.

50. As I gather, you would consider it negligent on the part of the author if he did not search certain easily accessible sources of information?-Yes, I would, certainly. It is difficult to do, but 1 think it should be done by the author.

51. Such as the List of Peers in Whittaker, and the List of Members of the House of Commons?-Yes, and I would go much farther than that; I would go through the Telephone Directories and Post Office Directories. I think an author should use every possible effort to avoid the accidental use of a person's

name.

30 Novembris, 1927.]

[Continued.

Lord Stanley of Alderley.

52. In the case of a novel of high life you would have a greater chance of making researches than in the case of a novel of low life?-Yes.

Lord Stanley of Alderley.

57. Would it be true to say that your main practical grievance is that you are subjected to blackmailing rather than that you are brought into Court, and owing to the existing condition of the law you are forced to pay damages?—Yes, our grievance is from all these causes having created the present position for us authors. The habit of these blackmailing actions has affected publishers really more than authors, and now a condition has arisen which is really very troublesome to us.

58. Would it be true to say that if you in fact resisted these actions and brought them into Court, it is extremely rarely that damages would be given by a Jury against the author or the publisher?No, I am afraid that I cannot trust Juries; I do not think that really is so.

Lord Gorell.

59. I think it is true, is it not, that there has only been one successful case since the Artemus Jones case where any form of damage was given?—Yes, I think

so.

Chairman.] There was one case, I think, that came to the House of Lords from Scotland. In the Artemus Jones case the Court of Appeal were not unanimous. Lord Justice Fletcher Moulton delivered judgment in favour of the Defendant, if I remember rightly, and the case was taken to the House of Lords, and in the House of Lords it was settled. What I was told yesterday was that there was a case from Scotland which was brought to the House of Lords, and argued and decided in favour of the views of the majority of the Court of Appeal in the Artemus Jones case; but I cannot say where it is.

Mr. Kennedy.] The Artemus Jones case was not settled in the House of Lords, was it?

Chairman.] I was told the other day that it was.

Mr. Kennedy.] I think it was a unanimous judgment in favour of the Respondent.

Lord Stanley of Alderley.] It went to the House of Lords, did it? Mr. Kennedy.] Yes.

Chairman.] There was a Judgment in the House of Lords, was there?