Courts of equity have laid down the doctrine in terms which are so wholly irrespective of the actual moral condition of the defendant as to go to an opposite extreme.It is said that "when a representation in a matter of business is made by one man to another calculated to induce him to adapt his conduct to it, it is perfectly immaterial whether the representation is made knowing it to be untrue, or whether it is made believing it to be true, if, in fact, it was untrue." Perhaps the actual decisions could be reconciled on a
narrower principle, but the rule just stated goes the length of saying that in business matters a man makes every statement (of a kind likely to be acted on) at his peril.This seems hardly justifiable in policy.The moral starting point of liability in general should never be forgotten, and the law cannot without disregarding it hold a man answerable for statements based on facts which would have convinced a wise and prudent man of their truth.The public advantage and necessity of freedom in imparting information, which privileges even the slander of a third person, ought a fortiori, it seems to me, to privilege statements made at the request of the party who complains of them.
The common law, at any rate, preserves the reference to morality by making fraud the ground on which it goes.It does not hold that a man always speaks at his peril.But starting from the moral ground, it works out an external standard of what would be fraudulent in the average prudent member of the community, and requires every member at his peril to avoid that.As in other cases, it is gradually accumulating precedents which decide that certain statements under certain circumstances are at the peril of the party who makes them.
The elements of deceit which throw the risk of his conduct upon a party are these.First, making a statement of facts purporting to be serious.Second, the known presence of another within hearing.
Third, known facts sufficient to warrant the expectation or suggest the probability that the other party will act on the statement.(What facts are sufficient has been specifically determined by the courts in some instances; in others, no doubt, the question would go to the jury on the principles heretofore explained.) Fourth, the falsehood of the statement.This must be known, or else the known evidence concerning the matter of the statement must be such as would not warrant belief according to the ordinary course of human experience.(On this point also the court may be found to lay down specific rules in some cases. )I next take up the law of slander.It has often been said that malice is one of the elements of liability, and the doctrine is commonly stated in this way: that malice must exist, but that it is presumed by law from the mere speaking of the words; that again you may rebut this presumption of malice by showing that the words were spoken under circumstances which made the communication privileged,-- as, for instance, by a lawyer in the necessary course of his argument, or by a person answering in good faith to inquiries as to the character of a former servant,-and then, it is said, the plaintiff may meet this defence in some cases by showing that the words were spoken with actual malice.
All this sounds as if at least actual intent to cause the damage complained of, if not malevolence, were at the bottom of this class of wrongs.Yet it is not so.For although the use of the phrase "malice" points as usual to an original moral standard, the rule that it is presumed upon proof of speaking certain words is equivalent to saying that the overt conduct of speaking those words may be actionable whether the consequence of damage to the plaintiff was intended or not.And this fails in with the general theory, because the manifest tendency of slanderous words is to harm the person of whom they are spoken.Again, the real substance of the defence is not that the damage was not intended, -- that would be no defence at all; but that, whether it was intended or not,--that is, even if the defendant foresaw it and foresaw it with pleasure,--the manifest facts and circumstances under which he said it were such that the law considered the damage to the plaintiff of less importance than the benefit of free speaking.
It is more difficult to apply the same analysis to the last stage of the process, but perhaps it is not impossible.It is said that the plaintiff may meet a case of privilege thus made out on the part of the defendant, by proving actual malice, that is, actual intent to cause the damage complained of.But how is this actual malice made out? It is by showing that the defendant knew the statement which he made was false, or that his untrue statements were grossly in excess of what the occasion required.Now is it not very evident that the law is looking to a wholly different matter from the defendant's intent? The fact that the defendant foresaw and foresaw with pleasure the damage to the plaintiff, is of no more importance in this case than it would be where the communication was privileged.The question again is wholly a question of knowledge, or other external standard.And what makes even knowledge important? It is that the reason for which a man is allowed in the other instances to make false charges against his neighbors is wanting.It is for the public interest that people should be free to give the best information they can under certain circumstances without fear, but there is no public benefit in having lies told at any time; and when a charge is known to be false, or is in excess of what is required by the occasion, it is not necessary to make that charge in order to speak freely, and therefore it falls under the ordinary rule, that certain charges are made at the party's peril in case they turn out to be false, whether evil consequences were intended or not.The defendant is liable, not because his intent was evil, but because he made false charges without excuse.
