Scottish Court of Session Decisions

At advising—

Lord Young—The parties to this case are relatives by marriage, and such a dispute as has arisen between them is much to be regretted. The mother of the appellant's wife seems to have objected to the marriage, and never to have taken kindly to the respondent. As a result of the disagreement which existed there was an action in the Sheriff Court for delivery of certain property which is referred to in the correspondence, and with which indeed the correspondence is to a great extent taken up. The appellant (respondent in the Sheriff Court) proposed, in order to inform his friends of the exact state of matters and of the nature of his own conduct, to print and circulate among them a pamphlet headed “Correspondence between Mrs White, Miss White, Mr and Mrs Begg, Mr Thomson and others, and Mr and Mrs Dickson, also record in action raised in Sheriff Court, with shorthand writer's notes of the proof taken, and Sheriff-Substitute's interlocutor.” He communicated his intention to his mother-in-law by a letter, in which he expressed his intention of printing the whole correspondence, and sent to her the first eight pages of the pamphlet in proof, and then this process of interdict was raised against his publishing the letters therein contained without consent of the pursuers, who aver that the publication of such private letters will be hurtful to their feelings. The appellant says—and it is for himself to judge of the propriety of his course if the law allows it—that he thinks it concerns his interest that his friends should be acquainted with the facts of the dispute and the terms of the correspondence. The Sheriff-Substitute being of opinion that such a publication would be a violation of confidence, has interdicted it. He says in his note—“The interdict asked and granted is against the circulation of the pamphlet as a distinct subject or compilation; and this judgment determines no question as to the defenders' right to print or circulate in some other form the proceedings in the action, or the letters which they have themselves written.” I have a difficulty in comprehending this sentence. The respondent by the threatened publication is either threatening to violate a right or he is not. If he is, the form of doing it cannot be of much materiality. Without dwelling therefore on that matter, I am of opinion that the appellant is violating no right of the pursuers'. We are familiar with many cases where it has been deemed right by parties for their interest or in their justification that the whole proceedings in an action in which they have been engaged should be published. I have known many such instances, and it is a novelty to me that such publication is against the right of another party who does not wish such publication. Undoubtedly the publication of correspondence of a literary character may be interdicted on the ground of copyright. A literary man travelling abroad and sending home a daily journal of his proceedings, with or without the view of publication, might, if publication were threatened, ask protection from violation of his literary property. I might take other illustrations—for example, the case of private and confidential letters from one friend to another, written in the exuberant confidence of private friendship. In such a case we might interfere to prevent the publication of what was evidently the outpourings of one mind and heart to another. But we do not need to conceive cases in which the Court might interdict publication on other considerations than those we have here. I have looked through the letters, and am of opinion that there is no law to disentitle the respondent to do in the matter as he will. I have my own opinion as to the expediency of the course he is pursuing, but he must like other men judge of that for himself. I am of opinion, on the ground I have just stated, that the judgment of the Sheriff-Substitute must be set aside.

Lord Craighill.—In this case the respondents in the appeal, who were the petitioners before the Sheriff, ask interdict against the proposed publication by the appellants of letters which were written by the respondents to the appellants, and that interdict has been granted by the Sheriff. Hence the present appeal.

The question is one of importance; for, on the one hand, it would be to be regretted were it the law that any letter written on the faith of confidential communication might as a matter of course, and notwithstanding the opposition of the writer, be published to the world. On the other hand, it would be a hard and unreasonable rule were it the case that even though the writer could not in any way be injured, and though the receiver has a reasonable purpose to serve, the opposition of the former is an absolute bar to publication. Law and the reason of the thing is to be found between these two extremes; and when I say the law, I mean to express what is my understanding not only of the rule recognised in Scotland, but of that also which is observed in England. The reason of the rule, indeed, appears not to be the same in the two countries. “In England,” Professor Bell says (Principles, par. 1356), “it is on the ground of property alone; in Scotland, on the ground chiefly of just and expedient interference for the protection of reputation.” Lord Chancellor Eldon, it may be observed, in deciding the case of Gee v. Pritchard, 2 Swans. 402, while recognising the fact that such is the ground upon which the English doctrine was founded, did not speak of that ground as one which to his mind was satisfactory; but as the interests of those concerned had been, and might continue to be, protected upon that basis, he was not disposed to part with it, seeing difficulties might arise in adopting a new foundation for rules requiring to be maintained. What is more important is, that he looked upon cases in which an injunction against the publication of private letters was sought as cases of circumstances. In other words, there is in England no hard or fast line to which decisions in this department must be squared, and the results in Percival v. Phipps, in which the injunction was refused, and in the earlier case of Gee v. Pritchard, in which it was granted, may be cited in illustration. The views of our law upon this question, as well as the reasons on which it rests, as expressed by Professor Bell in his Commentaries, i., 111, 112, 7th ed., are entitled to great consideration. Mr Bell says with regard to the publication of private letters—“In Scotland the Court of Session is held to have jurisdiction by interdict to protect not property merely, but reputation and even private feelings, from outrage and invasion. In one respect the publication of private letters may outrage both; and the question has been, whether where private letters have been written and sent to a correspondent, the author by sending them to his friend authorises him to disseminate them or publish them for gain? Now the purpose of the communication is quite different. It rather implies a veto on publication. Compositions for the public and for the eye of a friend are in a different spirit. It is one of the great charms of epistolary correspondence that one writes not under the awe of a misjudging world, but throws out unscrupulously his genuine and undisguised sentiments, utters his most secret thoughts and with as little reserve as in the secrecy of his own chamber, expresses his feelings of affection, or his murmurs of disapprobation and of censure, in full reliance that they are confided to a friendly ear. By the publication of such effusions—confidential, careless, unthinking of consequences—a man may be wounded in his tenderest part, his literary reputation hurt, his character traduced. It is accordingly the understood or implied condition of the communication—the implied limitation of the right conferred—that such communications are not to be published. With these natural feelings on the breach of epistolary confidence the determinations of the Court of Session have accorded.”

Where, however, none of these results can reasonably be contemplated from publication, and where, besides, there is a legitimate interest in the receiver to publish, the Court ought not and will not interfere to prevent publication. All questions of literary property are of course outside the present controversy. These when they arise will be dealt with on their merits, and must probably be decided upon other considerations.

These being my views of the law, which, I may add, are not in any way inconsistent with the cases reported in Morrison's Appendix, 1 and 4, voce “Literary Property,“to which the Sheriff has referred, I concur in thinking that the interdict prayed for ought not to be granted, and that having been granted by the Sheriff, it ought now to be recalled. The respondents will not be injured, and the appellants may be, and think they will be, benefited by the publication. I regret that the appellants insist upon their right. Much better would it be for them and for all who are concerned in the family embroglio to forbear, but, as I think, there is no ground in law on which they can be prevented.

Lord Justice-Clerk—I concur entirely, and the result is in accordance with what was my impression from the first. A question of interdict, especially against doing a thing of the kind sought to be interdicted here, is always a question for the discretion of this Court. It depends on the injury done and on the clearness of the evidence with which the probability of future injury is shown. This is not a question of property but of entirely equitable right, and the holder is in the first instance master of the letter. If he use it to the prejudice of the writer he may be responsible.

Lord Eldon in one of the cases cited laid it down to be a question of circumstances whether such publication as is here intended can be restrained; and I think with your Lordships that the circumstances here are not such as to render it necessary that publication be restrained. The appellant, however, will have to consider that if he does by the publication cause injury to others the fact that interdict is now refused will not shield him from the consequences.