Sutherland v Stopes: HL 1925

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.’
At common law, in a civil action, ‘a justification need not be to the whole, but may be to a part. If a man says that a certain neighbour of his was guilty of manslaughter and was also a thief, it is perfectly open to take a plea in justification of either charge only’
Viscount Finlay, Viscount Cave LC, Lord Shaw of Dunfermline, Lord Wrenbury (dissenting), Lord Carson
[1925] AC 47, [1924] All ER 19
CitedBradlaugh v The Queen 1877
Charles Bradlaugh and Mrs Annie Besant were prosecuted for publishing a treatise on contraceptive methods entitled the Fruits of Philosophy which had originally been published in the United States of America in 1832. They were prosecuted for . .
CitedBradlaugh v The Queen CA 1878
Conviction for publishing an obscene libel (abortion manual) overturned. . .

Cited by:
CitedRegina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
CitedSpiller and Another v Joseph and Others SC 1-Dec-2010
The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
Held: The defendants’ appeal succeeded, and the fair . .
CitedRothschild v Associated Newspapers Ltd QBD 10-Feb-2012
The claimant said that an article published by the defendant was defamatory. He said that the article implied that in his business associations he had put others at risk to their reputations.
Held: The action failed. The words were indeed . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.223706