NOTES OF CASES
| Published date | 01 July 1946 |
| Date | 01 July 1946 |
| DOI | http://doi.org/10.1111/j.1468-2230.1946.tb01008.x |
179
NOTES
OF
CASES
LIBELLOUS COMMUNICATIONS BY
A
FOREIGN
STATE
OFFICIAL
FROM
the point of view of international law the decision
of
Henn Collins
J.
in
Szalatny-Stacho
v.
Fink,
[l946]
1
All
E.R.
803
is both interesting and puzzling.
The defendant, the Chief Military Prosecutor in the Czech
Army, published documents alleged to be defamatory upon
the plaintiff, the then Czech Envoy in Cairo, by sending
them to the Military Office of the President
of
the Czecho-
slovakian Republic in London. The principal point for
decision was whether the communication was entitled to
absolute privilege. The learned Judge held that by English
law no such privilege could be claimed. On the other hand
he found that by Czech law
‘
this co nmunication could not
have founded any action, civil
or
criminal
’,
though in view
of an admitted excess of the defendant’s official duty the
plaintiff apparently had by Czech law the remedy
‘
to call
in
question the excess by some other form of procedure
’
(which
he did without success).
If
the libel had been published in Czechoslovakia, no
action could have been maintained here, because the com-
munication, though actionable in England, would have been
justifiable under the
lea:
loci delicti.
(This, at any rate,
seems to have been the conciusioh of the learned Judge,
though his reference to the existence of ‘some other form of
procedure
’
does not make it quite certain whether by Czech
law
it
was not perhaps actionability only that was excluded
while there remained such lack of justifiability
as
to bring
the case within the rule in
Machado
v.
Fontes,
[l897]
2
Q.B.
281.)
But the tort was committed in England.
At
first sight, therefore, English law alone applied, whatever the
nationality of the parties, and Czech law was immaterial.
How, then, was it possible for the defendant to invoke the
protection which Czech law would give him
?
Henn Collins
J.
held that it
was
the comity of nations,
i.e.
public policy that demanded that
‘
His Majesty’s Courts
should extend to communications such as this, passing
between Czech nationals on Czech affairs, the same protection
as
their own domestic courts would afford.
.
,
.
If
the comity
of nations is ever to be applied, it should surely be applied
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