WHAT IS A DOCUMENT?
| Date | 01 April 1948 |
| DOI | http://doi.org/10.1111/j.1468-2230.1948.tb00080.x |
| Published date | 01 April 1948 |
| Author | Glanville L. Williams |
WHAT
IS
A
DOCUMENT?
LAWYERS
have had much difficulty in classifying the different forms
of communication for legal purposes. One instance
of
this difficulty
is in thc distinction drawn between libel and slander. Both libel
and slander consist
of
symbols conveying
a
defamatory meaning;
and the symbols need not
be
verbal but may
be
‘
pictorial
’.
Thus
a caricature is capable
of
being libel and a gesture is capable
of
being slander. The distinction between libel atld slander is supposed
to
reside in the permanence
or
otherwise of the symbol; but.
as
permanence is
a
matter of degree the line is hard
to
draw in
marginal cases. Another difficulty is that a
‘
permanent
’
symbol
may
be
capable only
of
‘
transient
’
interpretation, An example is
the gramophone record (assuming for the purpose of argument
that this is not capable
of
interpretation otherwise than by being
played).
If
we say that
a
gramophone record
of
a
defamatory
statement is capable
of
being libel because the words are produced
from
a
permanent base, what are we to make
of
the p.arrot trained
to utter
a
defamatory remark? Such
a
parrot has in its mind an
‘
engram
’
corresponding to the defamatory remark, and may be
regarded as nothing more than
a
living gramophone.
If
the parrot
is a libel, what
of
a small child who has been trained
to
repeat
a
defamatory remark
?
And if this is libel, why should not a repetition
of a slander by anyone amount to the publishing of
a
libel? The
problem can perhaps
be
attacked by saying that the engram
in
someone’s mind is not
a
symbol, because not directly perceived.
But this solution has difficulties
of
its own.
Since the invention of broadcasting thc most sensible way
of
dealing with this particular distinction would
be
to
abolish it. But
there are other departnients of the law whcrc the classification of
the forms of symbolism occasions difficulty. One such difficulty
arises from the rule that forgery can
be
committed only in respect
of a
‘
document
’.
Forgery as a common law offence was developed
in the eighteenth century, and it was then assumed to
be
capable
of
being committed only in respect of a writing. Later the term
‘
document
’
tended to take thc place of
‘
writing
’,
and the former
term was that selected for use in section
4
of the Forgery Act,
1018,
which puts the offence on a statutory footing. The restriction
implied by the word
‘
document
’
may be iliustrated by taking
a
clear case of something that is not a document.
If
X
makes
imitation pearls and sells them
as
genuine we should not say that
he has committed a forgery.
So
interpreted, the rule that forgery
is confined
to
documcnts would probably commend itself
to
the
man in the street as a statement of the ordinary meaning
of
the
word
‘
forgery
’.
150
To continue reading
Request your trial