There is much ado these days about fake news. Some find it entertaining. Others find it dangerous. Neither can claim that it has been positive or educational. We can learn a thing or two about fake news that lightens the heart and enlightens the mind from the politician A.P. Herbert.
After graduating with a law degree from Oxford, A.P. Herbert decided to serve the British people by making law as a Member of Parliament instead of practising it as a lawyer. Nevertheless, he had much to reveal about judicial prejudices and to teach about legal processes in the fictional “Misleading Cases” that he authored in Punch Magazine as early as 1924, and were televised by the BBC as early as 1967.
Case No. 8 Trott v Tulip dealt with the question of when literary criticism became defamatory. As summarized by the court, “The facts are simple enough. The defendant, Mrs. Tulip, in reviewing a recent work of Miss Clelia Trott’s, a book called Midnight, employed the following words: ‘It is no good, Miss Trott. All your murders and detectives, your vamps and mysteries, do not deceive us, charming though they are. The truth is, Miss Trott, you are a bit of a highbrow.’ Miss Clelia Trott, so far from being disarmed by the sprightly and almost complimentary manner of review, has brought an action for defamation, complaining particularly of the word ‘highbrow’, which is said to have prejudiced her professionally as a writer of disturbing narratives for railway reading or, as they are sometimes called, it appears, ‘best-sellers’.” The court found for the plaintiff because it agreed that being characterized as highbrow was “so revolting that no lady or gentleman of right feeling could well submit to be named by their name without some effort to secure such protection as the law affords.”
Case No. 11 Suet v Haddock was equally unforgiving in finding that commercial criticism can also be defamation. The jury was instructed as follows, “Gentlemen, in this case the plaintiff is a manufacturer, and the defendant, Mr. Haddock is among other things, an author, which fact should alone dispose you in the plaintiff’s favour; for, while the lifeblood of our country is its trade and commerce, we do not, fortunately, depend upon our literature for anything that matters. … The plaintiff manufactures, among other things, a patent medicine called SINKO, which is widely advertised as having the power to remove or remedy ‘That Sinking Feeling’. Now what the defendant wrote about SINKO was brief and blunt: ‘SINKO does not remove That Sinking Feeling, for I have tried it.’ The plaintiff says that these words are defamatory and claims damages. The defendant says that the words are true, or in the alternative that they are in the nature of fair comment upon a matter of public interest.” It is interesting to note that the jury in this case was instructed to award damages of £10,000 pounds for commercial criticism, whereas the previous case only awarded damages of ¼ of a penny for literary criticism. Was this the natural result of the bias favouring trade & commerce over arts & literature? Or could it also be due to another bias arising from the fact that this plaintiff was a man while the previous plaintiff was a woman?
Case No. 35 Bacon v Egg; Kidney v Egg may shed some light on the above questions. Mr. Bacon wrote a play entitled Between Ourselves. Mr. Kidney is the theatre manager who staged it. Mr. Egg is the dramatic critic who published a negative review of it: “Dialogue, deplorable; plot, puerile; characterization, childish … The fact is, Mr. Bacon does not begin to know his business; and after this production we begin to doubt whether Mr. Kidney knows his.” The jury awarded damages of £10,000 pounds for this dramatic criticism – the same amount a man had received for commercial criticism. Perhaps we should not hasten to compare these cases through critical feminist perspectives; after all, there is an obvious difference between characterizing a woman as “highbrow” and characterizing a man as “incompetent”.
As entertaining (and educational) as his misleading cases were, A.P. Herbert always remembered that they were fiction. The same cannot be said of his readers. One American newspaper reported Case No. 32 Board of Inland Revenue v Haddock as a real case with the heading, “A Check Can Be Written On A Cow.” An American legal publication reported Case No. 5 Rex v Haddock to illustrate how no American court could violate “the general maxim that people cannot be punished for violating laws that have not been announced and defined” by quoting the following paragraph from the offending British opinion: “‘It is a principle of English law’ said the Court of Criminal Appeal, ‘that a person who appears in a police court has done something undesirable, and citizens who take it upon themselves etc., etc., (exactly as above) … It is not for me to say what offence the appellant has committed, but I am satisfied that he has committed some offence for which he has been most properly punished.’” That legal publication also indexed the fake reference of Rex v Haddock, C.C.A. miscellaneous law, Criminal Law (31) 1927.
Was that entertaining? Or was that dangerous? Just as not all that glitters is gold, not all fake news are equally tongue-in-cheek. If we do not learn about history, we will not learn from it and are doomed to repeat it.
Shen Goh is an instructor and PhD candidate at Osgoode Hall Law School.
 AP Herbert, Uncommon Law – Being 66 Misleading Cases revised and collected in one volume (Great Britain: Redwood Burn Limited, 1979) 42 at 43.
 Ibid at 52.
 Ibid at 66.
 Ibid at 68.
 Ibid at 224-225.
 Ibid at 229.
 Although the female’s complaint was that the term ‘highbrow’ prejudiced her professionally, the court ignored the issue completely.
 Although the men’s complaint was that “Mr. Egg was not invited to express an opinion at all” (Ibid at 225), the court replaced their baseless complaint with its own lengthy discussion on how an honest opinion may still be professional defamation (and decided within that discussion that arts & literature should be equal to trade & commerce): “For example, it is defamatory to use expressions reflecting upon a man in the way of his trade, profession, or calling. The law of this businesslike land is jealous to protect our professional reputations; and spoken words reflection upon them (by a special exception to the general law of slander) are actionable per se, without proof of special damage. To say of a doctor that he had no knowledge of medicine, of a solicitor that he knew nothing of the law, or of a banker that he did not know his business would without doubt be defamatory, however honestly the opinion was held and however moderately that opinion was expressed. … There cannot be one law of libel for the author and another for the financier. An imputation of profession incapacity or unfitness is as damaging to the one as it is to the other; and each must be entitled to the same remedy at law, unless we are prepared to say that the author is a kind of outlaw, of having a lower status than the solicitor or business man and entitled to a lower standard of justice. Unfortunately this view is very commonly held, and it has been encouraged by the feeble acquiescence or noble disdain of the writing profession; but in this Court it will receive no encouragement. I hold that the author, however loathsome to the ordinary citizen, is in the eyes of the law a professional man; and the newspapers must be as careful what they say about his professional fitness as they would in the case of a surgeon.”
(Ibid at 228-229) [Emphasis added].
 Ibid at Introduction.