fermline, Lord Wrenbury (dissenting), Lord Carson
Dr Marie Stopes failed in her attempt to reverse the verdict against her in libel proceedings she had brought in relation to a book which criticised what it called her ‘monstrous campaign of birth control’ and opined, looking back to the events of 1877, that Bradlaugh had been ‘condemned to jail for a less serious crime’ than that which she had allegedly committed. The court discussed the crime of publishing an obscene libel, and explained the decision in Bradlaugh.
Viscount Finlay said: ‘The conviction of Bradlaugh proceeded on the ground that his book describing and recommending methods of birth control was an obscene libel. The obscenity was simply in describing and recommending such methods of control.’ and ‘[T]here remain two sentences of the libel which were relied on as expressions of opinion and libellous. The first was contained in the words ‘the ordinary decent instincts of the poor are against these practices.’ This, it is said, was libellous. The plaintiff’s contention on this point, when analyzed, comes to this, that these words involve the expression of an opinion that there was something reprehensible in these practices which revolted the instincts of the poor. It appears to me that it is impossible to hold that the bounds of fair comment are exceeded by the expression of an opinion honestly held that such practices are revolting to the healthy instincts of human nature. There is an old and widespread aversion to such methods on this ground. This sentiment was voiced by the historian of the Decline and Fall of the Roman Empire when in his fortieth chapter he referred to such practices as ‘detestable precautions.” and ‘The work for the publication of which Bradlaugh was sentenced was, as I have pointed out, confined to the inculcation of methods of birth control. The plaintiff has done what Bradlaugh did, but she has done something more. We were referred in the course of the argument to certain passages in the books published by the plaintiff of such a nature that they were not read aloud. These books have a very large circulation, and for my part I cannot doubt that they are calculated to have a most deplorable effect upon the young of both sexes. It would be absurd to say that the epithet ‘monstrous’ as applied to such a ‘campaign’ passes the bounds of fair criticism, or that it was not fair comment to use language implying that such passages as those to which I have referred aggravate the criminality of the obscene libel.’
Viscount Finlay treated the defence of fair comment as a variety of qualified privilege, saying: ‘The defendant who raises this defence does not take upon himself the burden of showing that the comments are true. If the facts are truly stated with regard to a matter of public interest, the defendant will succeed in his defence to an action of libel if the jury are satisfied that the comments are fairly and honestly made. To raise this defence there must, of course, be a basis of fact on which the comment is made.’