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 Social Media and the Law
2nd Edition
Patrick George, Kennedys
BA (SYD), LLB (UNSW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Monica Allen, ACA Lawyers

LLM (SYD)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Gerard Basha, Bartier Perry,

BEc (MACQ), LLM (SYD), LLM (APPLIED LAW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Stefanie Benson, Allen & Overy

BA (SYD), LLB (UNSW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Joseph Collins, National Rugby League

LLB (HONS) (UTS)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

James B Mattson, Bartier Perry

BA (UNSW), LLM (SYD)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Justine Munsie, Addisons

BA (UNSW), LLB (UNSW)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

Gabriella Rubagotti, Selborne Chambers

BA (HONS) (UNSW), LLB (UNSW)
MEMBER OF THE NEW SOUTH WALES BAR

Gavin Stuart, Bartier Perry

BSc, LLB (UTS)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES

James Whiley, Bartier Perry

BSc (CHEMISTRY & LAW JOINT HONOURS) (BRISTOL UNIVERSITY, UK)
SOLICITOR, SUPREME COURT OF NEW SOUTH WALES AND SOLICITOR, SENIOR
COURTS OF ENGLAND AND WALES
LexisNexis Butterworths
Australia
2016
 LexisNexis
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National Library of Australia Cataloguing-in-Publication entry

Author: George, atrick Thomas.

Title: Social Media and the Law
Edition: 2nd Edition.
ISBN: 9780409343380 (pbk).
9780409343397 (ebk).
Notes: Includes index.
Social media — law and legislation —
Australia.
Subjects:
Online social networks — law and
legislation — Australia.
Allen, Monica. Basha, Gerard. Benson,
Stefanie. Collins, Joseph. Mattson, James
Other Authors/Contributors:
B. Munsie, Justine. Rubagotti, Gabriella.
Stuart, Gavin. Whiley, James.
Dewey Number: 343.94099

© 2016 Reed International Books Australia Pty Limited trading as

LexisNexis.
1st Edition 2014.
This book is copyright. Except as permitted under the Copyright Act 1968
(Cth), no part of this publication may be reproduced by any process,
electronic or otherwise, without the specific written permission of the
copyright owner. Neither may information be stored electronically in any
form whatsoever without such permission.
Inquiries should be addressed to the publishers.
Typeset in Garamond MT and Gill Sans.
Printed in China.
Visit LexisNexis Butterworths at www.lexisnexis.com.au
 About the Authors

Patrick George (General Editor) is the author of Defamation Law in

Australia, which is now in its 2nd edition. He is the Senior Partner at Kennedys
in Australia. Patrick has acted in many high-profile defamation and media-
related cases and complex commercial cases over a 30-year period.
Monica Allen is a Senior Associate at ACA Lawyers and is a commercial
litigation lawyer with extensive experience managing large-scale litigation in the
Supreme Court of New South Wales and the Federal Court of Australia. She is
experienced in a wide range of commercial disputes and has a practice
predominantly involving NSW Supreme Court and Federal Court of Australia
litigation. Monica holds a Master of Laws and has special interests in cross-
border issues, international arbitration and technology-related disputes.
Gerard Basha is an Executive Lawyer at Bartier Perry, specialising in estate
planning, and in contested and uncontested probate and estate litigation. He is
an Accredited Specialist in Wills and Estates Law. His principal practice areas
include equity and trusts as well as capacity applications before the Guardianship
Division of the New South Wales Civil and Administrative Tribunal. Gerard has
also advised and been involved as an expert witness in succession law cases in
the Supreme Court of New South Wales.
Stefanie Benson is a Senior Associate in the Competition practice at Allen &
Overy. She specialises in competition and consumer law, including cartel
investigations, misuse of market power, mergers, joint ventures, infrastructure
access and the Australian Consumer Law. Stefanie acts for clients in the media,
technology, communications and retail industries and has a particular interest in
cross-border matters and the growth of competition regimes in the Asia–Pacific
region.
Joseph Collins is Senior Legal Counsel at the National Rugby League.
Previously, he was a Senior Associate in Clayton Utz’s Litigation and Dispute
Resolution practice, where he acted in a broad range of large-scale commercial
disputes.
James B Mattson is an Executive Lawyer at Bartier Perry, leading its
Workplace Team. He is an Accredited Specialist in Employment Law and
Industrial Relations. James regularly appears in administrative and industrial
tribunals, as well as in courts, representing employers.
Justine Munsie is a Partner at Addisons, specialising in media and intellectual
property law. Justine acts for clients operating in the media, entertainment,
advertising and gaming industries, as well as other brand owners whom she
advises on a range of issues relevant to content, branding, reputation and
marketing.
Gabriella Rubagotti is a barrister admitted to the New South Wales Bar and
holds degrees in arts and law from the University of New South Wales. She
practises in the areas of defamation, intellectual property, constitutional and
corporate law. Since her commencement at the Bar, Gabriella has appeared in a
number of high-profile cases concerning media law and the constitutionally
implied freedom of political communication.
Gavin Stuart is an Executive Lawyer in Bartier Perry’s Commercial Litigation
and Dispute Resolution group. He has over 19 years’ experience providing
commercial dispute advice and appearance services covering domestic and
cross-border contractual disputes involving jurisdictions such as England, New
Zealand, India and the United States of America. He also has extensive
experience in finance-related issues, intellectual property, information
technology, and corporate and regulatory matters. Gavin has a wealth of
experience in the conduct of proceedings in the Supreme Court of New South
Wales and other states and territories, the Federal Court of Australia as well as
specialist tribunals.
James Whiley is a Senior Associate at Bartier Perry. Since being admitted as a
solicitor in England and Wales in September 2008 and in New South Wales in
2015, he has specialised in providing estate- and succession-planning services to
high-net-worth individuals and families in Australia, the United Kingdom and
offshore, including structuring, Australian and UK tax planning, creating
tailored strategies for clients with complex personal and business circumstances
and the implementation of all relevant documentation to achieve their intentions
in relation to their private wealth, to their business, or to both. James also
specialises in resolving trust and estate disputes and has extensive experience in
cross-jurisdictional issues.
 Preface

Social media has established itself as the medium of choice for everyday
exchanges. As such, it is a world where free speech may truly exist. It enables
the free flow of communication at any time of the day or night by anyone to
anyone.
The benefit of that freedom has been seriously challenged by the harm
caused to those who are abused on social media for malicious, unlawful or
criminal purposes. Many who engage in that abuse choose to speak with spite
and cruelty, often behind the mask of anonymity. Many choose not to exercise
restraint and speak about others without inhibition or care.
Imposing restraint by law has been difficult and, at times, futile.
The publication of statements on social media is subject to defamation law
(Chapter 4) and, in more extreme cases, subject to the criminal law (Chapter 8).
If the communication is made in the course of employment, it may be
subject to employment law (Chapter 2). If made on social media in trade or
commerce, it may be subject to competition and consumer laws (Chapter 5).
Given the free flow of communication, the use of the work of others and the
protection of works on social media under copyright law is a matter of
developing concern (Chapter 6).
The ownership of a person’s social media accounts and disclosure of
messages on those accounts after death is another matter of developing concern
(Chapter 9).
If communications on social media invade the privacy of others or disclose
confidential information, they may be subject to laws being developed that
protect those rights (Chapter 3).
At the time of writing, the United Kingdom Supreme Court has just
delivered judgment in PJS v News Group Newspapers Ltd [2016] UKSC 26. In that
case, the court continued an interim injunction to preserve the privacy interests
of the appellant, his partner and their young children in England and Wales,
pending the trial. There had already been significant internet and social media
coverage which had identified the appellant and his family. The court held that
the injunction was the only remedy of any value to them for the invasion of
privacy by further disclosure in the English media, rather than any award of
damages. The decision supports the view that privacy rights can be applied to
prevent distress by intrusion and harassment where there is no public interest in
the underlying information to be published and even where the information has
been disclosed on the internet and in social media within the jurisdiction.
For a general overview of social media and the law, refer to Chapter 1. For
the ability to obtain documents and information through court process, refer to
Chapter 7.
The law is stated as at May 2016.
We are grateful to Jennifer Burrows and Helen Eastwood of LexisNexis for
the support and encouragement of this book. I take the opportunity to thank
each of the other authors, who lead busy professional lives and have found the
time to contribute their knowledge to this second edition of Social Media and the
Law.

Patrick George
Sydney
27 May 2016
 Table of Cases

References are to paragraphs

A
A v B (a company) [2002] All ER (D) 142 (Mar); [2003] QB 195; [2002] 2 All
ER 545; [2002] EWCA Civ 337 …. 3.43, 3.44, 3.125
— v B and C (QBD, 2 March 2001) …. 3.52
— v B plc [2000] 3 WLR 542 …. 3.140
— v Google New Zealand [2012] NZHC 2352 …. 4.89
— v Hayden (1984) 156 CLR 532 …. 3.144
A & M Records Inc v Napster Inc (Case No 239 F.3d 1004, 1025, United States
Court of Appeals, Ninth Circuit, Schroder CJ, Beezer and Paez JJ, 2001) ….
6.118
AB Ltd v Facebook Ireland Ltd [2013] NIQB 14 …. 4.82, 4.183
Adami v Maison de Luxe Ltd [1925] VLR 147; (1924) 35 CLR 143; 30 ALR 438
…. 2.17, 2.45
AG Australia Holdings Ltd v Burton (2002) 58 NSWLR 464; 58 IPR 268;
[2002] NSWSC 170 …. 3.123, 3.144
Age Co Pty Ltd v Liu (2013) 82 NSWLR 268; 296 ALR 186; 272 FLR 426;
[2013] NSWCA 26 …. 4.81
Agence France Presse v Morel (Case No 10-Civ-02730, United States District
Court, Southern District of New York, Nathan J, 21 May 2013) …. 6.84,
6.105, 6.107, 6.137, 6.145, 6.147
Agostino v Cleaves [2010] ACTSC 19 …. 8.36, 8.79
Ahmed v Nationwide News Pty Ltd (District Court of NSW, Bozic DCJ, 7
December 2012, unreported) …. 4.263
Airways Corporation of New Zealand Ltd v Pricewaterhouse Coopers Legal
[2002] NSWSC 138 …. 7.139
Aktas v Westpac Banking Corp [2010] HCA 25 …. 4.209
Ali v Nationwide News Pty Ltd [2008] NSWCA 183 …. 4.255
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158;
143 FLR 180 …. 4.114, 4.116
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010]
NSWSC 1395 …. 3.122, 3.123, 3.144
AMP v Persons Unknown [2011] EWHC 3454 …. 3.50, 3.66, 3.147
Anders v The Hutchins School [2016] FWC 241 …. 2.62
Anderson v Crown Melbourne Ltd (2008) 216 FLR 164; [2008] FMCA 152 ….
2.32
Appellant v Respondent (1999) 89 IR 407 …. 2.58
Applause Store Productions Ltd v Raphael [2008] All ER (D) 321 (Jul); [2008]
EWHC 1781 (QB) …. 3.62, 3.64, 3.65, 4.79, 4.80
Applicant v ACT Dept of Education and Training [2012] FWA 2562 …. 2.48
Ardis Health LLC v Nankivell United States District Court, Southern District,
New York, Case No 11 Civ 5013, 23 October 2012 …. 2.80
Armstrong Strategic Management and Marketing Pty Ltd v Expense Reduction
Analysts Group Pty Ltd; Expense Reduction Analysts Group Pty Ltd v
Armstrong Strategic Management and Marketing Pty Ltd [2012] NSWCA
430 …. 3.131
Arnison v Smith (1889) 41 Ch D 348 …. 5.104
Association of Quality Child Care Centres (NSW) v Manefield [2012] NSWCA
123 …. 4.273
Attorney-General v Fraill [2011] EWHC 1629 …. 8.148
— v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109; [1988] 3 All ER 545;
[1990] 3 WLR 776; [1988] 2 WLR 805 …. 3.41, 3.108, 3.120, 3.131
— v MGN Ltd [2011] All ER (D) 06 (Aug); [2012] 1 WLR 2408; [2012] 1 Cr
App Rep 1; [2011] EWHC 2074 …. 8.147
Attorney-General (NSW) v Radio 2UE Sydney Pty Ltd (NSWCCA, Priestley,
Meagher and Powell JJA, 16 October 1997, unreported) …. 8.154
Attorney-General (SA) v Adelaide City Corporation (2013) 249 CLR 1 ….
3.108, 3.111
Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd (1987) 8
NSWLR 341 …. 3.144
Austin v Honeywell Ltd (2013) 277 FLR 372; [2013] FCCA 662 …. 2.12
Australian and International Pilots Association v Qantas Airways Ltd [2014]
FCA 32 …. 2.32
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208
CLR 199; 185 ALR 1; 54 IPR 161; [2001] HCA 63 …. 3.2, 3.7, 3.17, 3.18,
3.20, 3.21, 3.24, 3.27, 3.39, 3.48, 3.83, 3.95, 3.110, 3.111, 3.112, 3.116, 3.124,
 3.126, 3.130, 3.132, 3.135
— v O’Neill (2006) 227 CLR 57; 229 ALR 457; [2006] HCA 46 …. 4.284, 4.285
Australian Competition and Consumer Commission v AirAsia Berhad Co
[2012] FCA 1413 …. 5.128, 5.129
— v Allergy Pathway (No 2) (2011) 192 FCR 34; [2011] FCA 74 …. 5.27, 5.44,
5.50, 5.182, 7.85
— v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305; [2009] HCA 19 ….
5.36
— v Commonwealth Bank of Australia (2003) 133 FCR 149; [2003] FCA 1129
…. 5.104
— v Dukemaster Pty Ltd [2009] FCA 682 …. 5.24
— v Jetstar Airways Pty Ltd [2015] FCA 1263 …. 5.91, 5.95, 5.100, 5.104
— v Signature Security Group Pty Ltd (2003) ATPR 41-908; [2003] FCA 3 ….
5.104
— v SMS Global Pty Ltd [2011] FCA 855 …. 5.114
— v TPG Internet Pty Ltd [2011] FCA 1254 …. 5.96, 5.97, 5.104, 5.130
— v — [2013] HCA 54 …. 5.95, 5.99, 5.103
Australian Football League (AFL) v Age Company Ltd (2006) 15 VR 419;
[2006] VSC 308 …. 3.115, 3.144
Author of a Blog v Times Newspapers Ltd [2009] EWHC 1358 …. 3.47, 3.57,
3.58, 3.59, 3.61, 3.113
Axe Market Gardens v Craig Axe (Case No CIV-2008-485-2676, High Court
Wellington, Gendall A J, 16 March 2009) …. 7.57

B
B, C and D v Australian Postal Corporation t/as Australia Post [2013] FWCFB
6191 …. 2.54, 2.55
Bacich v Australian Broadcasting Corp (1992) 29 NSWLR 1; 10 ACLC 1420 ….
3.123, 3.144
Banerji v Bowles [2013] FCCA 1052 …. 2.50, 2.76
Barach v University of New South Wales [2011] NSWSC 431 …. 4.63, 4.64,
4.65, 4.94, 4.108
Barrett v Ecco Personnel Pty Ltd [1998] NSWCA 30 …. 2.87
Barrymore v News Group Newspapers Ltd [1997] FSR 600 …. 3.125
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366;
204 ALR 193; [2004] HCA 5 …. 4.23, 4.209, 4.217
Basic v Australian Associated Motor Insurers [2012] QDC 208 …. 2.32
Bateman v Slatyer (1987) 71 ALR 553; 8 IPR 33 …. 5.88
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR
256; 227 ALR 425; 80 ALJR 1100; [2006] HCA 27 …. 3.24
Belbin v Lower Murray Urban & Rural Water Corp [2012] VSC 535 …. 4.275
Beloff v Pressdram Ltd [1973] 1 All ER 241 …. 3.142
Bennette v Cohen (2005) 64 NSWLR 81; [2005] NSWCA 341 …. 4.186
Berkoff v Burchill [1996] 4 All ER 1008 …. 4.170
BHP Coal Pty Ltd v Construction, Forestry, Mining and Energy Union [2013]
FCAFC 132 …. 2.43
Birnie v Police [2006] SASC 263 …. 8.24
Bishop v New South Wales [2000] NSWSC 1042 …. 4.72
Blackadder v Ramsey Butchering Services Pty Ltd (2002) 118 FCR 395; [2002]
FCA 603 …. 2.32
Blaney v Persons Unknown (UK High Court Chancery Division, Lewinson J,
October 2009, unreported) …. 7.57
Bleyer v Google Inc [2014] NSWSC 897 …. 4.104
Blylevens v Kidicorp Ltd [2014] NZERA Auckland 373 …. 2.67, 2.75, 2.76
Blyth Chemicals v Bushnells (1933) 49 CLR 66; 6 ALJR 457a; [1933] HCA 8 ….
2.45
Boal v BHP Coal Pty Ltd [2014] FWC 9331 …. 2.56
Board of Bendigo Regional Institute of Technical and Further Education v
Barclay (2012) 220 IR 445; [2012] HCA 32 …. 2.43
Bonnard v Perryman [1891] 2 Ch 269; [1891–4] All ER Rep 965 …. 3.109,
3.147, 4.285
Boral Besser Masonry Ltd v ACCC (2003) 215 CLR 374; 195 ALR 609; [2003]
HCA 5 …. 5.137
Bowden v Ottrey Homes [2012] FWA 6468 …. 2.70, 2.75, 2.76
— v — [2013] FWCFB 431 …. 2.70
Bowker v DP World Melbourne Ltd [2014] FWCFB 9227 …. 2.26, 2.27
Boyd v Mirror Newspapers Ltd [1980] 2 NSWLR 449 …. 4.132, 4.170
Bradley v Wingnut Films Ltd [1993] 1 NZLR 415 …. 3.70
Brady v Norman [2008] EWHC 2481 (QB) …. 4.217
Brand v Monks [2009] NSWSC 1454 …. 3.138
Bray v Hoffman-La Roche Ltd (2002) 118 FCR 1; 190 ALR 1; [2002] FCA 243
…. 5.211
Bread Manufacturers Ltd, Ex parte; Truth and Sportsman Ltd, Re (1937) 37 SR
(NSW) 242; 54 WN (NSW) 98 …. 8.164
Breen v Williams (1996) 186 CLR 71; 43 ALD 481; 138 ALR 259; [1996] HCA
57 …. 3.120, 3.148
Bridge Stockbrokers Ltd v Bridges (1984) 4 FCR 460; [1984] FCA 391 ….
 5.104
Bristow v Adams [2012] NSWCA 166 …. 4.273
British American Tobacco Australia Services Ltd v Cowell (2002) 7 VR 524;
[2002] VSCA 197 …. 7.70, 7.75
British Broadcasting Corp Re; Attorney General’s Reference (No 3 of 1999)
[2009] All ER (D) 175 (Jun); [2009] UKHL 34; [2010] 1 AC 145; [2010] 1
All ER 235 …. 3.10
Broadmeadows Disability Services [2011] FWA 4063 …. 2.35
Broome v Cassell & Co Ltd [1972] AC 1027; [1972] 1 All ER 801 …. 4.256
Bunt v Tilley [2006] All ER (D) 142 (Mar); [2006] 3 All ER 336; [2007] 1 WLR
1243 …. 4.95, 4.228
Burrell v Clifford [2016] EWHC 294 (Ch) …. 3.55
Bushara v Nobananas Pty Ltd [2013] NSWSC 225 …. 4.274
Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60
…. 5.36
Byrne v Deane [1937] 2 All ER 204; [1937] 1 KB 818 …. 4.97
— v Howard (2010) 239 FLR 62; [2010] FMCAfam 509 …. 7.45
Byrne & Frew v Australian Airlines Ltd (1995) 185 CLR 410; [1995] HCA 24
…. 2.54

C
C v Holland [2012] 3 NZLR 672; [2012] NZHC 2155 …. 3.70, 3.74, 3.76, 3.77,
3.78
Cairns v Modi [2012] All ER (D) 01 (Nov); [2013] 1 WLR 1015; [2012] EWCA
Civ 1382 …. 4.131, 4.243, 4.255, 4.276, 4.279
— v — [2012] EWHC 756 (QB) …. 4.131
Cameron v Asciano Services Pty Ltd [2011] VSC 36 …. 2.47
Campbell v Mirror Group Newspapers Ltd [2004] All ER (D) 67 (May); [2004]
UKHL 22; [2004] 2 AC 457; (2004) 62 IPR 231; [2004] 2 All ER 995 ….
3.10, 3.41, 3.42, 3.43, 3.44, 3.46, 3.48, 3.50, 3.51, 3.67, 3.142
Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45;
169 ALR 677; [2000] HCA 12 …. 5.36
Candy v Bauer Media Ltd [2013] NSWSC 979 …. 3.2, 3.69, 3.95, 3.147
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44; 113 ALR 577; [1993]
HCA 31 …. 4.254
Cassar v Network Ten Pty Ltd [2012] NSWSC 680 …. 4.248
Catholic Education Commission of Victoria v Independent Education Union
of Australia [2012] FWA 7274 …. 2.39
Chambers v DPP [2012] All ER (D) 346 (Jul); [2013] 1 All ER 149; (2012) 176
JP 737; [2012] EWHC 2157 …. 8.41
Chan v Sellwood; Chan v Calvert [2009] NSWSC 1335 …. 3.95
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; 241 ALR 468;
[2007] HCA 60 …. 4.116, 4.223
Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010]
NSWCA 335 …. 4.195, 4.255
Chase v Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 …. 4.143
Christou v Beatport LLC 849 F. Supp. 2d 1055 (2012) …. 2.84
Church of Scientology Inc v Woodward (1982) 154 CLR 25; 43 ALR 587; 57
ALJR 42; [1982] HCA 78 …. 3.10, 3.16
Citigroup Pty Ltd v Weerakoon [2008] QDC 174 …. 7.51, 7.53
Citizens’ Life Assurance Co Ltd v Brown [1904] AC 423 …. 4.71
Clift v Clarke [2011] EWHC 1164 …. 4.188
Coco v AN Clark (Engineers) Ltd (1968) 1A IPR 587; [1968] FSR 415; [1969]
RPC 41 …. 3.59, 3.121, 3.129, 3.130
Coleman v Power (2004) 220 CLR 1; 209 ALR 182; 78 ALJR 1166; [2004] HCA
39 …. 3.111, 8.59
Columbia Pictures Industries v Fung (Case No 447 F.Supp.2d 306, United
States District Court, Southern District of New York, Stanton J, 21 August
2006) …. 6.111, 6.117, 6.118, 6.171
— v — (Case No 710 F.3d 1020, United States Court of Appeals, Ninth
Circuit, Berzon J, 21 March 2013) …. 6.111, 6.117, 6.118, 6.171
Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39; 32 ALR 485; 55
ALJR 45 …. 3.116, 3.120, 3.132
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing
and Allied Services Union of Australia v Australia Post [2006] AIRC 541 ….
2.32
Computer Edge Pty Ltd v Apple Computer Inc (1986) 161 CLR 171; 65 ALR
33; 6 IPR 1; [1986] HCA 19 …. 6.32
Concrete Constructions (NSW) Pty Ltd v Nelson [1990] HCA 17 …. 5.117
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd [2012]
FCA 1201 …. 2.43
— v BHP Coal Pty Ltd (No 3) [2012] FCA 1218 …. 2.43
Corby v Allen & Unwin Pty Ltd (2013) 297 ALR 761 …. 6.73
Cornes v The Ten Group Pty Ltd (2011) 114 SASR 1; 275 LSJS 476; [2011]
SASC 104 …. 4.135, 4.175, 4.177
Corrie v Sheen Panel Service (Vic) Pty Ltd [2013] FWC 7830 …. 2.53
Corrs Pavey Whiting v Collector of Customs (Vic) (1987) 14 FCR 434; 13 ALD
 254; 74 ALR 428; 10 IPR 53 …. 3.122, 3.141, 3.143
Cox Broadcasting v Cohn 420 US 469 (1975) …. 3.90
Crampton v Nugawela (1996) 41 NSWLR 176; (1997) Aust Torts Reports 81-
416 …. 4.273
Crisp v Apple Retail (UK) Ltd (UK Employment Tribunal, case no
1500258/2011) …. 2.10, 2.64
Crispin v Christian Audigier Inc (Case No CV 09-09509-MMM-JEMx, United
States District Court, CD California, 26 May 2010) …. 7.113
Crockett v Vondoo Hair t/as Vondoo Hair [2012] FWA 8300 …. 2.76
Crowther v Sala [2008] 1QdR127 …. 8.69
Cruise & Kidman v Southdown Press Pty Ltd (1993) 26 IPR 125 …. 3.69, 3.147
CTB v News Group Newspapers Ltd [2011] All ER (D) 142 (May); [2011]
EWHC 1232 (QB) …. 4.156
— v — [2011] EWHC 1326 (QB) …. 4.156
— v — [2011] EWHC 1334 (QB) …. 4.156
Cush v Dillon (2011) 243 CLR 298; 279 ALR 631; [2011] HCA 30 …. 4.218

D
Dank v Whittaker (No 1) [2013] NSWSC 1062 …. 4.73
David Syme & Co v Canavan (1918) 25 CLR 234; 24 ALR 275; [1918] HCA 50
…. 4.69
David Syme & Co Ltd v General Motors-Holden’s Ltd [1984] 2 NSWLR 294
…. 3.144
— v Hore-Lacy [2000] 1 VR 667 …. 4.207
Davis v Nationwide News Pty Ltd [2008] NSWSC 693 …. 4.258
Davison v Habeeb [2011] All ER (D) 205 (Nov); [2012] 3 CMLR 104; [2011]
EWHC 3031 (QB) …. 4.97
Dekort v Johns River Tavern Pty Ltd t/as Blacksmiths Inn Tavern [2010] FWA
3389 …. 2.32
Del Casale v Artedomus (Aust) Pty Ltd (2007) 73 IPR 326; [2007] NSWCA 172
…. 2.20
Dering v Uris [1964] 2 QB 669; [1964] 2 All ER 660; [1964] 2 WLR 1298 ….
4.206
Didomizio v Tetra Pak Manufacturing Pty Ltd [2005] AIRC 936 …. 2.32
Digital Pulse Pty Ltd v Harris (2002) 166 FLR 421; [2002] NSWSC 33 …. 2.91
Director of Public Prosecutions v Collins [2006] All ER (D) 249 (Jul); [2006]
UKHL 40; [2006] 4 All ER 602; [2006] 1 WLR 2223 …. 8.51
— v Kear (2006) 204 FLR 55; [2006] NSWSC 1145 …. 7.130
— v Rodriguez [2012] VCC 1216 …. 8.27
Director of Public Prosecutions (NSW) v Eades [2009] NSWSC 1352 …. 8.129
Director of Public Prosecutions (Vic) v Johanson [2012] VCC 708 …. 8.20
Doe v Australian Broadcasting Corp [2007] VCC 281 …. 3.2, 3.10, 3.31, 3.34,
3.35
— v Yahoo!7 Pty Ltd; Wright v Pagett [2013] QDC 181 …. 3.2, 3.37
Donoghue v Allied Newspapers Ltd [1938] Ch 106; [1937] 3 All ER 503 ….
6.19
Douglas v Hello! Ltd [2000] All ER (D) 2435; (2000) 9 BHRC 543; [2001] QB
967; [2001] 2 All ER 289; [2001] 2 WLR 992 …. 3.7, 3.41, 3.44, 3.83
— v — (No 2) [2004] All ER (D) 280 (May); [2006] QB 125; (2005) 65 IPR
449; [2005] 4 All ER 128 …. 3.149, 3.150
Dover-Ray v Real Insurance Pty Ltd (2010) 204 IR 399; [2010] FWA 8544 ….
2.62, 2.75
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575; 194 ALR 433 …. 4.35,
4.36, 4.59, 4.61, 4.67
Duchess of Argyll v Duke of Argyll [1967] Ch 302 …. 3.117, 3.118, 3.125
Duffy v Google Inc [2011] SADC 178 …. 4.89
— v — [2015] SASC 170 …. 4.103, 4.272
— v — (No 2) [2015] SASC 206 …. 4.272
Duke of Brunswick v Harmer (1849) 14 QB 185; 117 ER 75 …. 4.67
Dye v Commonwealth Securities Ltd [2010] FCA 720 …. 3.95

E
Eagle v Morgan United States District Court, Eastern District Pennsylvania,
Case No 11-4303, 12 March 2013 …. 2.79
East England Schools CIC v Palmer [2013] EWHC 4138 …. 2.94
Eiselein v BuzzFeed (Case No 1:13-cv-03910-UA, United States District Court,
Southern District of New York, 7 June 2013) …. 6.64, 6.146
Elzahed v Commonwealth of Australia [2015] NSWDC 271 …. 4.192
Enders v Erbas & Associates Pty Ltd (No 2) [2013] NSWDC 44 …. 4.273
Energizer NZ Ltd v Panasonic New Zealand Ltd (HC Auckland CIV 2009-404-
4087 16 November 2009) …. 5.104
Enhanced Network Solutions v Hypersonic Technologies Corp 951 N.E.2d 265
(2011) …. 2.86
Entienne Pty Ltd v Festival City Broadcasters Pty Ltd (2001) 79 SASR 19;
[2001] SASC 60 …. 4.177
Epichealth Pty Ltd v Yang [2015] VSC 516 …. 2.102
Equal Employment Opportunity Commission v Simply Storage Management
LLC (Case No 1:09-cv-1223-WTL-DML, United States District Court,
Southern District of Indiana, 11 May 2010) …. 7.99, 7.118, 7.129
Equico Equipment Finance Ltd v Enright [2009] NZERA 411 …. 2.87
Ettingshausen v Australian Consolidated Press Ltd (1991) 23 NSWLR 443;
Aust Torts Reports 81–125 …. 4.170
Ewin v Vergara (No 3) [2013] FCA 1311 …. 2.30
Exxon Corporation v Exxon Insurance Consultants International Ltd [1982]
Ch 119; [1981] 3 All ER 241; [1981] 3 WLR 541 …. 6.40

F
Faccenda Chicken Ltd v Fowler [1987] 1 Ch 117 …. 2.91
Facebook Inc, Re 923 F.Supp. 1204 (2013) …. 9.157
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim (2012) 83
NSWLR 52; 293 ALR 384; 263 FLR 211; [2012] NSWCCA 125 …. 3.38
Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154 …. 4.207
— v Reed International Books Australia Pty Ltd (2010) 189 FCR 109; 272 ALR
547; 88 IPR 11; [2010] FCA 984 …. 6.35, 6.40, 6.48, 6.49
Faulkner v BHP Coal Pty Ltd [2014] FWC 9330 …. 2.56
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52
…. 4.114, 4.115, 4.118, 4.141, 4.142, 4.143
Finlay v Finlay 18 Kan App 2d 479, 485–86, 856 P 2d 183, 189 (1993) …. 3.85
Fire Watch Australia Pty Ltd v Country Fire Authority (1999) 93 FCR 520;
[1999] FCA 761 …. 5.112
Fitzgerald v Dianna Smith t/as Escape Hair Design (2010) 204 IR 292; [2010]
FWA 7358 …. 2.3, 2.31, 2.60, 2.64, 2.75
Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 …. 5.44
— v — [2015] FCAFC 52 …. 5.118
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 …. 1.104, 7.44, 7.56
Flood v Times Newspapers Ltd [2012] All ER (D) 153 (Mar); [2012] UKSC 11;
[2012] 2 AC 273 …. 4.75, 4.77
Florida Star v BJF 491 US 524 (1989) …. 3.90
Forkserve Pty Ltd v Jack (2001) 19 ACLC 299; [2000] NSWSC 1064 …. 2.81
Franchi v Franchi [1967] RPC 149 …. 3.138
Frangione v Vandongen 2010 ONSC 2823 …. 7.118
Fraser v Evans [1969] 1 QB 349 …. 3.49, 3.109
French v Fraser [2015] NSWSC 1807 …. 4.16
Frost v Kourouche [2014] NSWCA 39 …. 7.91
 G
G v Day [1982] 1 NSWLR 24 …. 3.138
G & G v Wikimedia Foundation Inc [2009] EWHC 3148 (QB) …. 3.65, 4.84
Gacic v John Fairfax Publications Pty Ltd [2013] NSWSC 1920 …. 4.280
Gallagher v Durack (1983) 152 CLR 238; 45 ALR 53; 57 ALJR 191; [1983]
HCA 2 …. 8.165
Gardam v George Wills Co Ltd (No 1) (1988) 82 ALR 415; 12 IPR 194 …. 5.75
Gartside v Outram (1857) 26 LJ Ch (NS) 113 …. 3.129, 3.141
Gatto v United Air Lines (Case No 10-cv-1090-ES-SCM, United States District
Court, District of New Jersey, 25 March 2013) …. 2.32, 7.80
Gee v Burger [2009] NSWSC 149 …. 3.95
George Weston Foods Ltd v Goodman Fielder Ltd [2000] FCA 1632 …. 5.104
Ghosh v Google Australia Pty Ltd [2013] NSWDC 146 …. 4.89, 4.90
Giller v Procopets (2008) 24 VR 1; 79 IPR 489; [2008] VSCA 236 …. 3.2, 3.21,
3.95, 3.145, 3.146
Gillett v Bullivant (1846) 7 LT (0S) 49 …. 4.135
Global Partners Fund Ltd v Babcock & Brown Ltd (in Liq) (2010) 267 ALR
144; [2010] NSWSC 270 …. 4.63
Global Sportsman Pty Ltd v Mirror Newspapers Ltd (1984) 2 FCR 82; 55 ALR
25 …. 5.34, 5.88
Gluyas v John Best Junior [2013] VSC 3 …. 4.274
Godfrey v Demon Internet Ltd [2001] QB 201; [1999] 4 All ER 342; [2000] 3
WLR 1020 …. 4.97
Godfrey Hirst NZ Ltd v Cavalier Bremworth Ltd [2014] NZCA 418 …. 5.104
Google Inc v ACCC (2013) 294 ALR 404; 99 IPR 197; [2013] HCA 1 …. 4.98,
5.36, 5.45, 5.68, 5.74
— v Vidal-Hall [2015] EWCA Civ 311; [2015] CP Rep 28; [2015] 3 WLR 409;
[2015] EMLR 15; [2015] FSR 25; …. 3.41, 3.150, 3.168
Gould v Vaggelas (1985) 157 CLR 215; [1985] HCA 75 …. 5.104
Gramotnev v Queensland University of Technology [2013] QSC 158 …. 3.95
Grant v Marshall [2003] FCA 1161 …. 7.65
Graves v West [2013] NSWSC 641 …. 7.51
Gray v Gray [2013] WASC 387 …. 9.87
Griffiths v Rose (2011) 201 IR 216; [2011] FCA 30 …. 2.21, 2.58
Grosse v Purvis (2003) Aust Torts Reports 81-706; [2003] QDC 151 …. 3.2,
3.28, 3.34, 3.39, 3.146
Grubb v Bristol United Press Ltd [1963] 1 QB 309; [1962] 2 All ER 380; [1962]
3 WLR 25 …. 4.111
Gulati v MGN Ltd [2015] WLR(D) 232, [2015] EWHC 1482 (Ch) …. 3.55
Gulliver Schools, Inc and School Management Systems Inc v Snay (26 February
2014, District Court of Appeal of Florida, No. 3D13-1952) …. 2.77
Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369; Aust Torts Reports
81-748; [2004] VSC 138 …. 4.217

H
Habib v Nationwide News Pty Ltd (2010) 78 NSWLR 619; [2010] NSWSC 924
…. 4.253
— v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 …. 4.71, 4.74
Haddon v Forsyth [2011] NSWSC 123 …. 4.273
Haertsch v Channel Nine Pty Ltd [2010] NSWSC 182 …. 4.275
Hammond v Credit Union Baywide [2015] NZHRRT 6 …. 2.13
Hanna v OAMPS Insurance Brokers Ltd (2010) 202 IR 420; [2010] NSWCA
267 …. 2.93
Hanson-Young v Bauer Media Ltd [2013] NSWSC 1306 …. 4.171, 4.172
Harris v Digital Pulse Pty Ltd (2003) 56 NSWLR 298 …. 3.146
Harvey v Egis Road Operation Australia Pty Ltd [2015] FWC 2306 …. 2.61,
2.75
— v — [2015] FWCFB 4034 …. 2.61
Hays Specialist Recruitment (Holdings) Ltd v Ions [2008] EWHC 745 …. 2.82,
2.91
Health Services Union v Life Without Barriers [2012] FWA 6244 …. 2.36
Hellmann Insurance Brokers Pty Ltd v Peterson [2003] NSWSC 242 …. 2.87
Her Majesty’s Attorney General v The Condé Nast Publications Ltd [2015]
EWHC 3322 (Admin) …. 8.150
Herald & Weekly Times v Popovic (2003) 9 VR 1; [2003] VSCA 161 …. 4.219,
4.255
Hilton & Longhurst [2013] FamCA 511 …. 7.51
Hinch v Attorney-General (Vic) (1987) 164 CLR 15; 74 ALR 353; 61 ALJR 556;
[1987] HCA 56 …. 8.154
Hispanics United of Buffalo Inc and Carlos Ortiz (2012) 359 NLRB No 37 ….
2.42
HL (a minor) v Facebook Inc [2013] NIQB 25 …. 4.82
Hockey v Fairfax Publications Pty Ltd [2015] FCA 652 …. 4.50, 4.116, 4.121
Hook v Stream Group (NZ) Pty Ltd [2013] NZEmpC 188 …. 2.3, 2.53, 2.69
Hope v Bathurst City Council (1980) 144 CLR 1; 29 ALR 577 …. 5.213
Hornsby Building Information Centre Pty Ltd v Sydney Building Information
 Centre Ltd (1978) 140 CLR 216; [1978] HCA 11 …. 5.36
Hosking v Runting [2003] 3 NZLR 385 …. 3.41
— v — [2005] 1 NZLR 1; [2004] NZCA 34; (2004) 7 HRNZ 301 …. 3.10,
3.70, 3.71, 3.75, 3.77, 3.78, 3.150
Hough v London Express Newspaper Ltd [1940] 3 All ER 31; [1940] 2 KB 507
…. 4.135

I
iCabinCrew Connect [2013] FWC 4143 …. 2.36
IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458; 254
ALR 386; 80 IPR 451; [2009] HCA 14 …. 6.33
Industrial Equity Ltd v North Broken Hill Holding Ltd (1986) 9 FCR 385; 64
ALR 292; 6 IPR 317 …. 5.88
Infopaq International A/S v Danske Dagblades Forening [2009] ECDR 16 ….
6.46
Integrated Medical Technology Pty Limited v Gilbert [2015] QSC 124 …. 7.84
Interfirm Comparison (Australia) Pty Ltd v Law Society of NSW [1975] 2
NSWLR 104 …. 3.138
Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands)
BV (1977) 15 ALR 353 …. 6.73
Investorshub Com Inc v Mina Mar Group Inc, 2011 US Dist Lexis 87566
(MDFLA 20 June 2011) …. 4.108
Invidia LLC v DoFonzo, 2012 WL 5576406 (Mass. Super 22 October 2012) ….
2.86
Ives v Western Australia (No 8) [2013] WASC 277 …. 4.210, 4.211, 4.216

J
Jakudo Pty Ltd v South Australian Telecasters Ltd (1997) 69 SASR 440; [1997]
SASC 6370 …. 4.286
Jameel v Dow Jones Inc [2005] EWCA Civ 75 …. 4.36
Jameel (Mohammed) v Wall Street Journal Europe Sprl [2006] UKHL 44;
[2007] 1 AC 359; [2006] 4 All ER 1279 …. 4.253
— v — [2007] 1 AC 359 …. 3.51
Jeffrey v Giles [2013] VSC 268 …. 4.274
Jeynes v News Magazines Ltd [2008] All ER (D) 285 (Jan); [2008] EWCA Civ
130 …. 4.115
John v MGN Ltd [1997] QB 586; [1996] 2 All ER 35; [1996] 3 WLR 593 ….
4.255
John Fairfax Publications Pty Ltd v District Court of NSW (2004) 61 NSWLR
344; 50 ACSR 380; 148 A Crim R 522; [2004] NSWCA 324 …. 8.148
— v Obeid (2005) 64 NSWLR 485; [2005] NSWCA 60 …. 4.75
— v Rivkin (2003) 201 ALR 77; [2003] HCA 50 …. 4.116
John Holland Pty Ltd v CFMEU [2013] FCA 615 …. 2.37, 2.39
John Reid Enterprises Ltd v Pell [1999] EMLR 675 …. 3.125
Johns v Australian Securities Commission (1993) 178 CLR 408; 31 ALD 417;
116 ALR 567; [1993] HCA 56 …. 3.129, 3.137, 3.148
Jones v E Hulton & Co (1909) 2 KB 444 …. 4.69
— v Skelton [1964] NSWR 485; [1964] ALR 170; [1963] 3 All ER 952 ….
4.111, 4.115
— v Sutton (2004) 61 NSWLR 614; [2004] NSWCA 439 …. 4.56, 4.239
— v Toben (2002) 71 ALD 629; [2002] FCA 1150 …. 2.31
Judson v City of Sydney (2008) 172 IR 11; [2008] AIRCFB 289 …. 2.100

K
Kalaba v Commonwealth of Australia [2004] FCA 763 …. 3.95
— v — [2004] FCAFC 326 …. 3.95
Kaye v Robertson (1990) 19 IPR 147; [1991] FSR 62 …. 3.41
Kea Petroleum Holdings Limited v McLeod [2014] NZERA Wellington 113
…. 2.77
Kensington v Air New Zealand Ltd [2013] NZERA Auckland 332 …. 2.32
Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263 …. 4.31,
4.120
King v Lewis [2004] All ER (D) 234 (Oct); [2004] EWCA Civ 1329 …. 4.63
KNF&T Staffing Inc v Muller 2013 Mass Super Lexis 189 (24 October 2013)
…. 2.86
Knight v Gibbs (1834) 1A&E 43 …. 4.135
Knott v Sutherland (Feb 5 2009), Edmonton 0803 02267 (Alta QBM) …. 7.57
Konidaris v Google Australia Pty Ltd [2015] NSWSC 1810 …. 4.93
Koops Martin v Reeves [2006] NSWSC 449 …. 2.92, 2.93
Ku-ring-gai Co-op Building Soc (No 12) Ltd, Re (1978) 22 ALR 621; 36 FLR
134 …. 5.33
Kwok v Thang [1999] NSWSC 1034 …. 3.147

L
Labelmakers Group Pty Ltd v LL Force Pty Ltd [2012] FCA 512 …. 2.91
Lamb v Cotogno (1987) 164 CLR 1 …. 3.146
Lambley v DP World Sydney Ltd [2013] FCA 4 …. 2.76
Lange v Australian Broadcasting Corp (1997) 189 CLR 520; 145 ALR 96; 71
ALJR 818; [1997] HCA 25 …. 3.111, 3.112, 3.114, 3.115, 4.23, 4.219, 8.59
Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285;
[1959] 1 WLR 698 …. 2.45
LCR Mining Group Pty Ltd v CFMEU [2016] FWCFB 400 …. 2.4
Lee v Smith (2007) EOC 93-456; [2007] FMCA 59 …. 2.30
— v Wilson and Mackinnon (1934) 51 CLR 276; [1935] ALR 51 …. 4.27
Leech v Green & Gold Energy Pty Ltd [2011] NSWSC 999 …. 4.262
Lenah Game Meats Pty Ltd v Australian Broadcasting Corp (1999) 9 Tas R 355;
A Def R 53-040; [1999] TASSC 114 …. 3.19
— v — (TASSC, Underwood J, 3 May 1999, unreported) …. 3.19
Lennon v News Group Newspapers Ltd [1978] FSR 573 …. 3.140
Lester v Allied Concrete (Case No CL.08-150, CL09-223, United States Circuit
Court, Virginia State, 1 September 2011) …. 7.80
Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151; [1963] 2
WLR 1063 …. 4.115, 4.118, 4.143
Ley v Hamilton (1935) 153 LT 384 …. 4.56, 4.275
Lindner v Murdock’s Garage (1950) 83 CLR 628; [1950] ALR 927 …. 2.92, 2.93
Linfox Australia Pty Ltd v Fair Work Comm [2013] FCAFC 157 …. 2.69
— v Stutsel (2012) 217 IR 52; [2012] FWAFB 7097 …. 2.3, 2.68, 2.69, 2.75,
2.76
Lion Laboratories Ltd v Evans [1985] QB 526 …. 3.142
Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Ltd (2010) 198
IR 143; [2010] FCA 770 …. 2.47
Little v Credit Corp Group Ltd t/as Credit Corp Group [2013] FWC 9642 ….
2.2, 2.4, 2.19, 2.63, 2.71, 2.75
Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472 …. 2.92
Liu v The Age Co Ltd (2012) 285 ALR 386; 257 FLR 360; [2012] NSWSC 12
…. 3.113, 4.81
Lloyd v David Syme & Co Ltd (1985) 3 NSWLR 728; [1986] AC 350; (1985) 63
ALR 83 …. 4.69
Lord Ashburton v Pope (1913) 2 Ch 469 …. 3.116, 3.132
Lord McAlpine v Bercow [2013] EWHC 1342 …. 4.75, 4.77, 4.149, 4.158
Loty and Holloway and the Australian Workers Union, Re [1971] AR (NSW) 95
…. 2.63

M
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The old Arabian fable, that they are directed in their flights by a
leader or king[23], has been adopted: but I think without sufficient
reason, by several travellers. Thus Benjamin Bullivant, in his
observations on the Natural History of New England[24], says that
"the locusts have a kind of regimental discipline, and as it were
some commanders, which show greater and more splendid wings
than the common ones, and arise first when pursued by the fowls or
the feet of the traveller, as I have often seriously remarked." And in
like terms Jackson observes, that "they have a government amongst
themselves similar to that of the bees and ants; and when the
(Sultan Jerraad) king of the locusts rises, the whole body follow him,
not one solitary straggler being left behind[25]." But that locusts
have leaders, like the bees or ants, distinguished from the rest by
the size and splendour of their wings, is a circumstance that has not
yet been established by any satisfactory evidence; indeed, very
strong reasons may be urged against it. The nations of bees and
ants, it must be observed, are housed together in one nest or hive,
the whole population of which is originally derived from one common
mother, and the leaders of the swarms in each are the females. But
the armies of locusts, though they herd together, travel together,
and feed together, consist of an infinity of separate families, all
derived from different mothers, who have laid their eggs in separate
cells or houses in the earth; so that there is little or no analogy
between the societies of locusts and those of bees and ants; and
this pretended sultan is something quite different from the queen-
bee or the female ants. It follows, therefore, that as the locusts have
no common mother, like the bees, to lead their swarms, there is no
one that nature, by a different organization and ampler dimensions,
and a more august form, has destined to this high office. The only
question remaining is, whether one be elected from the rest by
common consent as their leader, or whether their instinct impels
them to follow the first that takes flight or alights. This last is the
learned Bochart's opinion, and seems much the most reasonable[26].
The absurdity of the other supposition, that an election is made, will
appear from such queries as these, at which you may smile.—Who
are the electors? Are the myriads of millions all consulted, or is the
elective franchise confined to a few? Who holds the courts and takes
the votes? Who casts them up and declares the result? When is the
election made?—The larvæ appear to be as much under government
as the perfect insect.—Is the monarch then chosen by his peers
when they first leave the egg and emerge from their subterranean
caverns? or have larva, pupa, and imago each their separate king?
The account given us in Scripture is certainly much the most
probable, that the locusts have no king, though they observe as
much order and regularity in their movements as if they were under
military discipline, and had a ruler over them[27]. Some species of
ants, as we learn from the admirable history of them by M. P. Huber,
though they go forth by common consent upon their military
expeditions, yet the order of their columns keeps perpetually
changing; so that those who lead the van at the first setting out,
soon fall into the rear, and others take their place: their successors
do the same; and such is the constant order of their march. It seems
probable, as these columns are extended to a considerable length,
that the object of this successive change of leaders is to convey
constant intelligence to those in the rear, of what is going forward in
the van. Whether any thing like this takes place for the regulation of
their motions in the innumerable locust-armies, which are sometimes
co-extensive with vast kingdoms; or whether their instinct simply
directs them to follow the first that moves or flies, and to keep their
measured distance, so that, as the prophet speaks, "one does not
thrust another, and they walk every one in his path[28]," must be left
to future naturalists to ascertain. And I think that you will join with
me in the wish that travellers, who have a taste for Natural History,
and some knowledge of insects, would devote a share of attention to
the proceedings of these celebrated animals, so that we might have
facts instead of fables.
The last order of imperfect associations approaches nearer to perfect
societies, and is that of those insects which the social principle urges
to unite in some common work for the benefit of the community.
Amongst the Coleoptera, Ateuchus pilularius, a beetle before
mentioned, acts under the influence of this principle. "I have
attentively admired their industry and mutual assisting of each
other," says Catesby, "in rolling those globular balls from the place
where they made them, to that of their interment, which is usually
the distance of some yards, more or less. This they perform breech
foremost, by raising their hind parts, forcing along the ball with their
hind feet. Two or three of them are sometimes engaged in trundling
one ball, which, from meeting with impediments from the
unevenness of the ground, is sometimes deserted by them: it is
however attempted by others with success, unless it happens to roll
into some deep hollow chink, where they are constrained to leave it;
but they continue their work by rolling off the next ball that comes in
their way. None of them seem to know their own balls, but an equal
care for the whole appears to affect all the community[29]."
Many larvæ also of Lepidoptera associate with this view, some of
which are social only during part of their existence, and others
during the whole of it. The first of these continue together while
their united labours are beneficial to them; but when they reach a
certain period of their life, they disperse and become solitary. Of this
kind are the caterpillars of a little butterfly (Melitæa Cinxia) which
devour the narrow-leaved plantain. The families of these, usually
amounting to about a hundred, unite to form a pyramidal silken tent,
containing several apartments, which is pitched over some of the
plants that constitute their food, and shelters them both from the
sun and the rain. When they have consumed the provision which it
covers, they construct a new one over other roots of this plant; and
sometimes four or five of these encampments may be seen within a
foot or two of each other. Against winter they weave and erect a
stronger habitation of a rounder form, not divided by any partitions,
in which they lie heaped one upon another, each being rolled up.
About April they separate, and continue solitary till they assume the
pupa.
Reaumur, to whom I am indebted for this account, has also given us
an interesting history of another insect, the gold-tail-moth (Arctia
chrysorhœa) before mentioned, whose caterpillars are of this
description. They belong to that family of Bombycidæ, which
envelop their eggs in hair plucked from their own body. As soon as
one of these young caterpillars is disclosed from the egg, it begins to
feed; another quickly joins it, placing itself by its side; thus they
proceed in succession till a file is formed across the leaf:—a second
is then begun; and after this is completed, a third—and so they
proceed till the whole upper surface of the leaf is covered:—but as a
single leaf will not contain the whole family, the remainder take their
station upon the adjoining ones. No sooner have they satisfied the
cravings of hunger, than they begin to think of erecting a common
habitation, which at first is only a vaulted web, that covers the leaf
they inhabit, but by their united labours in due time grows into a
magnificent tent of silk, containing various apartments sufficient to
defend and shelter them all from the attack of enemies and the
inclemency of the seasons. As our caterpillars, like eastern
monarchs, are too delicate to adventure their feet upon the rough
bark of the tree upon which they feed, they lay a silken carpet over
every road and pathway leading to their palace, which extends as far
as they have occasion to go for food. To the habitation just
described they retreat during heavy rains, and when the sun is too
hot:—they likewise pass part of the night in them;—and, indeed, at
all times some may usually be found at home. Upon any sudden
alarm they retreat to them for safety, and also when they cast their
skins:—in the winter they are wholly confined to them, emerging
again in the spring: but in May and June they entirely desert them;
and, losing all their love for society, live in solitude till they become
pupæ, which takes place in about a month. When they desert their
nests, the spiders take possession of them; which has given rise to a
prevalent though most absurd opinion, that they are the parents of
these caterpillars[30].
With other caterpillars the association continues during the whole of
the larva state. De Geer mentions one of the saw-flies (Serrifera) of
this description which form a common nidus by connecting leaves
together with silken threads, each larva moreover spinning a tube of
the same material for its own private apartment, in which it glides
backwards and forwards upon its back[31]. I have observed similar
nidi in this country; the insects that form them belong to the
Fabrician genus Lyda.
The most remarkable insects, however, that arrange under this class
of imperfect associates, are those that observe a particular order of
march. Though they move without beat of drum, they maintain as
much regularity in their step as a file of soldiers. It is a most
agreeable sight, says one of Nature's most favoured admirers,
Bonnet, to see several hundreds of the larvæ of Trichoda Neustria
marching after each other, some in straight lines, others in curves of
various inflection, resembling, from their fiery colour, a moving cord
of gold stretched upon a silken ribband of the purest white; this
ribband is the carpeted causeway that leads to their leafy pasture
from their nest. Equally amusing is the progress of another moth,
the Pityocampa, before noticed; they march together from their
common citadel, consisting of pine leaves united and inwoven with
the silk which they spin, in a single line: in following each other they
describe a multitude of graceful curves of varying figure, thus
forming a series of living wreaths, which change their shape every
moment:—all move with a uniform pace, no one pressing too
forward or loitering behind; when the first stops, all stop, each
defiling in exact military order[32].
A still more singular and pleasing spectacle, when their regiments
march out to forage, is exhibited by the caterpillars of the
Processionary moth Lasiocampa processionea. This moth, which is a
native of France, and has not yet been found in this country, inhabits
the oak. Each family consists of from 600 to 800 individuals. When
young, they have no fixed habitation, but encamp sometimes in one
place and sometimes in another, under the shelter of their web: but
when they have attained two-thirds of their growth, they weave for
themselves a common tent, before described[33]. About sun-set the
regiment leaves its quarters; or, to make the metaphor harmonize
with the trivial name of the animal, the monks their cœnobium. At
their head is a chief, by whose movements their procession is
regulated. When he stops, all stop, and proceed when he proceeds;
three or four of his immediate followers succeed in the same line,
the head of the second touching the tail of the first: then comes an
equal series of pairs, next of threes, and so on as far as fifteen or
twenty. The whole procession moves regularly on with an even pace,
each file treading upon the steps of those that precede it. If the
leader, arriving at a particular point, pursues a different direction, all
march to that point before they turn. Probably in this they are
guided by some scent imparted to the tracks by those that pass over
them. Sometimes the order of procession is different; the leader,
who moves singly, is followed by two, these are succeeded by three,
then come four, and so on. When the leader,—who in nothing differs
from the rest, and is probably the caterpillar nearest the entrance to
the nest, followed, as I have described,—has proceeded to the
distance of about two feet, more or less, he makes a halt; during
which those which remain come forth, take their places, the
company forms into files, the march is resumed, and all follow as
regularly as if they kept time to music. These larvæ may be
occasionally found at mid-day out of their nests, packed close one to
another without making any movement; so that, although they
occupy a space sufficiently ample, it is not easy to discover them. At
other times, instead of being simply laid side by side, they are
formed into singular masses, in which they are heaped one upon
another, and as it were interwoven together. Thus also they are
disposed in their nests. Sometimes their families divide into two
bands, which never afterwards unite[34].
I have nothing further of importance to communicate to you on
imperfect societies: in my next I shall begin the most interesting
subject that Entomology offers; a subject, to say the least, including
as great a portion both of instruction and amusement as any branch
of Natural History affords;—I mean those perfect associations which
have for their great object the multiplication of the species, and the
education, if such a term may be here employed, of the young. This
is too fertile a theme to be confined to a single letter, but must
occupy several.
I am, &c.
 LETTER XVII.
SOCIETIES OF INSECTS CONTINUED.
PERFECT SOCIETIES. (White Ants and Ants.)

The associations of insects of which my last letter gave you a detail,

were of a very imperfect kind, both as to their object and duration:
but those which I am now to lay before you exhibit the semblance of
a nearer approach, both in their principle and its results, to the
societies of man himself. There are two kindred sentiments, that in
these last act with most powerful energy—desire and affection.—
From the first proceed many wants that cannot be satisfied without
the intercourse, aid, and co-operation of others; and by the last we
are impelled to seek the good of certain objects, and to delight in
their society. Thus self-love combines with philanthropy to produce
the social principle, both desire and love alternately urging us to an
intercourse with each other; and from these in union originate the
multiplication and preservation of the species. These two passions
are the master-movers in this business; but there is a third
subsidiary to them, which, though it trenches upon the social
principle, considered abstractedly, is often a powerful bond of union
in separate societies—you will readily perceive that I am speaking of
fear;—under the influence of this passion these are drawn closer
together, and unite more intimately for defence against some
common enemy, and to raise works of munition that may resist his
attack.
The main instrument of association is language, and no association
can be perfect where there is not a common tongue. The origin of
nationality was difference of speech: at Babel, when tongues were
divided, nations separated. Language may be understood in a larger
sense than to signify inflections of the voice,—it may well include all
the means of making yourself understood by another, whether by
gestures, sounds, signs, or words: the two first of these kinds may
be called natural language, and the two last arbitrary or artificial.
I have said that perfect societies of insects exhibit the semblance of
a nearer approach, both in their principle and its results, to the
societies of man himself, because, unless we could perfectly
understand what instinct is, and how it acts, we cannot, without
exposing ourselves to the charge of temerity, assert that these are
precisely the same.
But when we consider the object of these societies, the preservation
and multiplication of the species; and the means by which that
object is attained, the united labours and co-operation of perhaps
millions of individuals, it seems as if they were impelled by passions
very similar to those main-springs of human associations, which I
have just enumerated. Desire appears to stimulate them—love to
allure them—fear to alarm them. They want a habitation to reside in,
and food for their subsistence. Does not this look as if desire were
the operating cause, which induces them to unite their labours to
construct the one and provide the other? Their nests contain a
numerous family of helpless brood. Does not love here seem to urge
them to that exemplary and fond attention, and those unremitted
and indefatigable exertions manifested by the whole community for
the benefit of these dear objects? Is it not also evidenced by their
general and singular attachment to their females, by their mutual
caresses, by their feeding each other, by their apparent sympathy
with suffering individuals and endeavours to relieve them, by their
readiness to help those that are in difficulty, and finally by their
sports and assemblies for relaxation? That fear produces its
influence upon them seems no less evident, when we see them,
agitated by the approach of enemies, endeavour to remove what is
most dear to them beyond their reach, unite their efforts to repel
their attacks, and to construct works of defence. They appear to
have besides a common language; for they possess the faculty, by
significative gestures and sounds, of communicating their wants and
ideas to each other[35].
There are, however, the following great differences between human
societies and those of insects. Man is susceptible of individual
attachment, which forms the basis of his happiness, and the source
of his purest and dearest enjoyments:—whereas the love of insects
seems to be a kind of instinctive patriotism that is extended to the
whole community, never distinguishing individuals, unless, as in the
instance of the female bee, connected with that great object.
Man also, endowed with reason, forms a judgement from
circumstances, and by a variety of means can attain the same end.
Besides the language of nature, gestures, and exclamations, which
the passions produce, he is gifted with the divine faculty of speech,
and can express his thoughts by articulate sounds or artificial
language.—Not so our social insects. Every species has its peculiar
mode of proceeding, to which it adheres as to the law of its nature,
never deviating but under the control of imperious circumstances;
for in particular instances, as you will see when I come to treat of
their instincts, they know how to vary, though not very materially,
from the usual mode[36]. But they never depart, like man, from the
general system; and, in common with the rest of the animal
kingdom, they have no articulate language.
Human associations, under the direction of reason and revelation,
are also formed with higher views,—I mean as to government,
morals, and religion:—with respect to the last of these, the social
insects of course can have nothing to do, except that by their
wonderful proceedings they give man an occasion of glorifying his
great Creator; but in their instincts, extraordinary as it may seem,
they exhibit a semblance of the two former, as will abundantly
appear in the course of our correspondence.
I shall not detain you longer by prefatory remarks from the amusing
scene to which I am eager to introduce you; but the following
observations of M. P. Huber on this subject are so just and striking,
that I cannot refrain from copying them.
"The history of insects that live in solitude consists of their
generation, their peculiar habits, the metamorphoses they undergo;
their manner of life under each successive form; the stratagems for
the attack of their enemies, and the skill with which they construct
their habitation: but that of insects which form numerous societies,
is not confined to some remarkable proceedings, to some peculiar
talent: it offers new relations, which arise from common interest;
from the equality or superiority of rank; from the part which each
member supports in the society;—and all these relations suppose a
connexion between the different individuals of which it consists, that
can scarcely exist but by the intervention of language: for such may
be called every mode of expressing their wishes, their wants, and
even their ideas, if that name may be given to the impulses of
instinct. It would be difficult to explain in any other way that
concurrence of all wills to one end, and that species of harmony
which the whole of their institution exhibits."
The great end of the societies of insects being the rapid
multiplication of the species, Providence has employed extraordinary
means to secure the fulfilment of this object, by creating a particular
order of individuals in each society, which, freed from sexual
pursuits, may give themselves wholly to labour, and thus absolve the
females from every employment but that of furnishing the society
from time to time with a sufficient supply of eggs to keep up the
population to its proper standard. In the case of the Termites, the
office of working for the society, as these insects belong to an order
whose metamorphosis is semi-complete, devolves upon the larvæ;
the neuters, unless these should prove to be the larvæ of males,
being the soldiers of the community.
From this circumstance perfect societies may be divided into two
classes; the first including those whose workers are larvæ, and the
second those whose workers are neuters[37]. The white ants belong
to the former of these classes, and the social Hymenoptera to the
latter.
Before I begin with the history of the societies of white ants, I must
notice a remark that has been made applying to societies in general
—that numbers are essential to the full development of the instinct
of social animals. This has been observed by Bonnet with respect to
the beaver[38]; by Reaumur of the hive-bee; and by M. P. Huber of
the humble-bee[39]. Amongst hymenopterous social insects,
however, the observation seems not universally applicable, but only
under particular circumstances; for in incipient societies of ants,
humble-bees, and wasps, one female lays the foundations of them
at first by herself; and the first brood of neuters that is hatched is
very small.

I have on a former occasion given you some account of the

devastation produced by the white ants, or Termites, the species of
which constitute the first class of perfect societies[40]; I shall now
relate to you some further particulars of their history, which will, I
hope, give you a better opinion of them.
The majority of these animals are natives of tropical countries,
though two species are indigenous to Europe; one of which, thought
to have been imported, is come so near to us as Bourdeaux. The
fullest account hitherto given of their history is that of Mr.
Smeathman, in the Philosophical Transactions for 1781; which, since
it has in many particulars been confirmed by the observations of
succeeding naturalists, though in some things he was evidently
mistaken, I shall abridge for you, correcting him where he appears
to be in error, and adding from Latreille, and the MS. of a French
naturalist resident on the spot, kindly furnished by Professor Hooker,
what they have observed with respect to those of Bourdeaux and
Ceylon. The white ants, though they belong to the Neuroptera order,
borrow their instinct from the hymenopterous social tribes, and in
conjunction with the ants (Formica) connect the two orders. Their
societies consist of five different descriptions of individuals—workers
or larvæ—nymphs or pupæ—neuters or soldiers—males and
females.
1. The workers or larvæ, answering to the hymenopterous neuters,
are the most numerous and at the same time most active part of the
community; upon whom devolves the office of erecting and repairing
the buildings, collecting provisions, attending upon the female,
conveying the eggs when laid to what Smeathman calls the
nurseries, and feeding the young larvæ till they are old enough to
take care of themselves. They are distinguished from the soldiers by
their diminutive size, by their round heads and shorter mandibles.
2. The nymphs or pupæ. These were not noticed by Smeathman,
who mistook the neuters for them:—they differ in nothing from the
larvæ, and probably are equally active, except that they have
rudiments of wings, or rather the wings folded up in cases
(Pterothecæ). They were first observed by Latreille; nor did they
escape the author of the MS. above alluded to, who mistook them
for a different kind of larvæ.
3. The neuters, erroneously called by Smeathman pupæ. These are
much less numerous than the workers, bearing the proportion of one
to one hundred, and exceeding them greatly in bulk. They are also
distinguishable by their long and large head, armed with very long
subulate mandibles. Their office is that of sentinels; and when the
nest is attacked, to them is committed the task of defending it.
These neuters are quite unlike those in the Hymenoptera perfect
societies, which seem to be a kind of abortive females, and there is
nothing analogous to them in any other department of Entomology.
4. and 5. Males and females, or the insects arrived at their state of
perfection, and capable of continuing the species. There is only one
of each in every separate society; they are exempted from all
participation in the labours and employments occupying the rest of
the community, that they may be wholly devoted to the furnishing of
constant accessions to the population of the colony. Though at their
first disclosure from the pupa they have four wings, like the female
ants they soon cast them; but they may then be distinguished from
the blind larvæ, pupæ, and neuters, by their large and prominent
eyes[41].
The first establishment of a colony of Termites takes place in the
following manner. In the evening, soon after the first tornado, which
at the latter end of the dry season proclaims the approach of the
ensuing rains, these animals, having attained to their perfect state,
in which they are furnished and adorned with two pair of wings,
emerge from their clay-built citadels by myriads and myriads to seek
their fortune. Borne on these ample wings, and carried by the wind,
they fill the air, entering the houses, extinguishing the lights, and
even sometimes being driven on board the ships that are not far
from the shore. The next morning they are discovered covering the
surface of the earth and waters: deprived of the wings which before
enabled them to avoid their numerous enemies, and which are only
calculated to carry them a few hours, and looking like large
maggots; from the most active, industrious, and rapacious, they are
now become the most helpless and cowardly beings in nature, and
the prey of innumerable enemies, to the smallest of which they
make not the least resistance. Insects, especially ants, which are
always on the hunt for them, leaving no place unexplored; birds,
reptiles, beasts, and even man himself, look upon this event as their
harvest, and, as you have been told before, make them their food;
so that scarcely a single pair in many millions get into a place of
safety, fulfill the first law of nature, and lay the foundation of a new
community. At this time they are seen running upon the ground, the
male after the female, and sometimes two chasing one, and
contending with great eagerness, regardless of the innumerable
dangers that surround them, who shall win the prize.
The workers, who are continually prowling about in their covered
ways, occasionally meet with one of these pairs, and, being impelled
by their instinct, pay them homage, and they are elected as it were
to be king and queen, or rather father and mother, of a new
colony[42]: all that are not so fortunate, inevitably perish; and,
considering the infinite host of their enemies, probably in the course
of the following day. The workers, as soon as this election takes
place, begin to inclose their new rulers in a small chamber of clay,
before described[43], suited to their size, the entrances to which are
only large enough to admit themselves and the neuters, but much
too small for the royal pair to pass through;—so that their state of
royalty is a state of confinement, and so continues during the
remainder of their existence. The impregnation of the female is
supposed to take place after this confinement, and she soon begins
to furnish the infant colony with new inhabitants. The care of
feeding her and her male companion devolves upon the industrious
larvæ, who supply them both with every thing that they want. As
she increases in dimensions, they keep enlarging the cell in which
she is detained. When the business of oviposition commences, they
take the eggs from the female, and deposit them in the
nurseries[44]. Her abdomen now begins gradually to extend, till in
process of time it is enlarged to 1500 or 2000 times the size of the
rest of her body, and her bulk equals that of 20,000 or 30,000
workers. This part, often more than three inches in length, is now a
vast matrix of eggs, which make long circumvolutions through
numberless slender serpentine vessels:—it is also remarkable for its
peristaltic motion, (in this resembling the female ant[45],) which, like
the undulations of water, produces a perpetual and successive rise
and fall over the whole surface of the abdomen, and occasions a
constant extrusion of the eggs, amounting sometimes in old females
to sixty in a minute, or eighty thousand and upwards in twenty-four
hours[46]. As these females live two years in their perfect state, how
astonishing must be the number produced in that time!
This incessant extrusion of eggs must call for the attention of a large
number of the workers in the royal chamber (and indeed it is always
full of them), to take them as they come forth and carry them to the
nurseries; in which, when hatched, they are provided with food, and
receive every necessary attention till they are able to shift for
themselves.—One remarkable circumstance attends these nurseries
—they are always covered with a kind of mould, amongst which
arise numerous globules about the size of a small pin's head. This is
probably a species of Mucor; and by Mr. König, who found them also
in nests of an East-Indian species of Termes, is conjectured to be the
food of the larvæ.
The royal cell has besides some soldiers in it, a kind of body guard
to the royal pair that inhabit it; and the surrounding apartments
contain always many both labourers and soldiers in waiting, that
they may successively attend upon and defend the common father
and mother, on whose safety depend the happiness and even
existence of the whole community; and whom these faithful subjects
never abandon even in the last distress.
The manner in which the Termites feed the young brood, before
they commence their active life and are admitted to share in the
labours of the nest, has not, as far as I know, been recorded by any
writer: I shall therefore leave them in their nurseries, and introduce
you to the bustling scene which these creatures exhibit in their first
state after they are become useful. To do this, in vain should I carry
you to one of their nests—you would scarcely see a single one
stirring—though, perhaps, under your feet there would be millions
going and returning by a thousand different ways. Unless I
possessed the power of Asmodeus in Le Diable Boiteux, of showing
you their houses and covered ways with their roofs removed, you
would return home as wise as you came; for these little busy
creatures are taught by Providence always to work under cover. If
they have to travel over a rock or up a tree, they vault with a coping
of earth the route they mean to pursue, and they form subterranean
paths and tunnels, some of a diameter wider than the bore of a
large cannon, on all sides from their habitation to their various
objects of attack; or which sloping down (for they cannot well mount
a surface quite perpendicular) penetrate to the depth of three or
four feet under their nests into the earth, till they arrive at a soil
proper to be used in the erection of their buildings. Were they,
indeed, to expose themselves, the race would soon be annihilated by
their innumerable enemies. This circumstance has deceived the
author of the MS. account of those in Ceylon, who, speaking of the
nests of these insects in that island, which he describes as twelve
feet high, observes, that "they may be considered as a large city,
which contains a great number of houses, and these houses an
infinite number of cells or apartments:——these cells appear to me
to communicate with each other, but not the houses. I have
convinced myself, by bringing together the broken walls of one of
the cavities of the nest or cone, that it does not communicate with
any other, nor with the exterior of the cone—a very curious
circumstance, which I will not undertake to explain. Other cavities
communicate by a very narrow tunnel." By not looking for
subterranean communications, he was probably led into this error.
You have before heard of their diligence in building. Does any
accident happen to their various structures, or are they dislodged
from any of their covered ways, they are still more active and
expeditious in repairing. Getting out of sight as soon as possible,—
and they run as fast or faster than any insect of their size,—in a
single night they will restore a gallery of three or four yards in
length. If, attacking the nest, you divide it in halves, leaving the
royal chamber, and thus lay open thousands of apartments, all will
be shut up with their sheets of clay by the next morning;—nay, even
if the whole be demolished, provided the king and the queen be left,
every interstice between the ruins, at which either cold or wet can
possibly enter, will be covered, and in a year the building will be
raised nearly to its pristine size and grandeur.
Besides building and repairing, a great deal of their time is occupied
in making necessary alterations in their mansion and its approaches.
The royal presence-chamber, as the female increases in size, must
be gradually enlarged, the nurseries must be removed to a greater
distance, the chambers and exterior of the nest receive daily
accessions to provide for a daily increasing population—and the
direction of their covered ways must often be varied, when the old
stock of provision is exhausted and new discovered.
The collection of provisions for the use of the colony is another
employment, which necessarily calls for incessant attention: these to
the naked eye appear like raspings of wood;—and they are, as you
have seen, great destroyers of timber, whether wrought or
unwrought:—but when examined by the microscope, they are found
to consist chiefly of gums and the inspissated juices of plants, which,
formed into little masses, are stored up in magazines made of clay.
When any one is bold enough to attack their nest and make a
breach in its walls, the labourers, who are incapable of fighting,
retire within, and give place to another description of its inhabitants,
whose office it is to defend the fortress when assailed by enemies:—
these, as observed before, are the neuters or soldiers. If the breach
be made in a slight part of the building, one of these comes out to
reconnoitre; he then retires and gives the alarm. Two or three others
next appear, scrambling as fast as they can one after the other;—to
these succeed a large body, who rush forth with as much speed as
the breach will permit, their numbers continually increasing during
the attack. It is not easy to describe the rage and fury by which
these diminutive heroes seem actuated. In their haste they
frequently miss their hold, and tumble down the sides of their hill:
they soon, however, recover themselves, and, being blind, bite every
thing they run against. If the attack proceeds, the bustle and
agitation increase to a ten-fold degree, and their fury is raised to its
highest pitch. Wo to him whose hands or legs they can come at! for
they will make their fanged jaws meet at the very first stroke,
drawing as much blood as will counterpoise their whole body, and
never quitting their hold, even though they are pulled limb from
limb. The naked legs of the Negroes expose them frequently to this
injury; and the stockings of the European are not sufficient to
defend him.
On the other hand, if, after the first attack, you get a little out of the
way, giving them no further interruption, supposing the assailant of
their citadel is gone beyond their reach, in less than half an hour
they will retire into the nest; and before they have all entered, you
will see the labourers in motion, hastening in various directions
towards the breach, every one carrying in his mouth a mass of
mortar half as big as his body[47], ready tempered:—this mortar is
made of the finer parts of the gravel, which they probably select in
the subterranean pits or passages before described, which, worked
up to a proper consistence, hardens to the solid substance
resembling stone, of which their nests are constructed. As fast as
they come up, each sticks its burthen upon the breach; and this is
done with so much regularity and dispatch, that although thousands,
nay millions, are employed, they never appear to embarrass or
interrupt one another. By the united labours of such an infinite host
of creatures the wall soon rises and the breach is repaired.
While the labourers are thus employed, almost all the soldiers have
retired quite out of sight, except here and there one, who saunters
about amongst them, but never assists in the work. One in particular
places himself close to the wall which they are building; and turning
himself leisurely on all sides, as if to survey the proceedings,
appears to act the part of an overseer of the works. Every now and
then, at the interval of a minute or two, by lifting up his head and
striking with his forceps upon the wall of the nest, he makes a
particular noise, which is answered by a loud hiss from all the
labourers, and appears to be a signal for dispatch; for, every time it
is heard, they may be seen to redouble their pace, and apply to their
work with increased diligence. Renew the attack, and this amusing
scene will be repeated:—in rush the labourers, all disappearing in a
few seconds, and out march the military as numerous and vindictive
as before.—When all is once more quiet, the busy labourers
reappear, and resume their work, and the soldiers vanish. Repeat the
experiment a hundred times, and the same will always be the result;
—you will never find, be the peril or emergency ever so great, that
one order attempts to fight, or the other to work.
You have seen how solicitous the Termites are to move and work
under cover and concealed from observation; this, however, is not
always the case;—there is a species larger than T. bellicosus, whose
proceedings I have been principally describing, which Mr.
Smeathman calls the marching Termes (Termes Viarum). He was
once passing through a thick forest, when on a sudden a loud hiss,
like that of serpents, struck him with alarm. The next step produced
a repetition of the sound, which he then recognised to be that of
white ants; yet he was surprised at seeing none of their hills or
covered ways. Following the noise, to his great astonishment and
delight he saw an army of these creatures emerging from a hole in
the ground; their number was prodigious, and they marched with
the utmost celerity. When they had proceeded about a yard they
divided into two columns, chiefly composed of labourers, about
fifteen abreast, following each other in close order, and going
straight forward. Here and there was seen a soldier, carrying his vast
head with apparent difficulty, and looking like an ox in a flock of
sheep, who marched on in the same manner. At the distance of a
foot or two from the columns many other soldiers were to be seen,
standing still or pacing about as if upon the look-out, lest some
enemy should suddenly surprise their unwarlike comrades;—other
soldiers, which was the most extraordinary and amusing part of the
scene, having mounted some plants and placed themselves on the
points of their leaves, elevated from ten to fifteen inches from the
ground, hung over the army marching below, and by striking their
forceps upon the leaf, produced at intervals the noise before
mentioned. To this signal the whole army returned a hiss, and
obeyed it by increasing their pace. The soldiers at these signal-
stations sat quite still during the intervals of silence, except now and
then making a slight turn of the head, and seemed as solicitous to
keep their posts as regular sentinels. The two columns of this army
united after continuing separate for twelve or fifteen paces, having
in no part been above three yards asunder, and then descended into
the earth by two or three holes. Mr. Smeathman continued watching
them for above an hour, during which time their numbers appeared
neither to increase nor diminish:—the soldiers, however, who quitted
the line of march and acted as sentinels, became much more
numerous before he quitted the spot. The larvæ and neuters of this
species are furnished with eyes.
The societies of Termes lucifugus, discovered by Latreille at
Bourdeaux, are very numerous; but instead of erecting artificial
nests, they make their lodgement in the trunks of pines and oaks,
where the branches diverge from the tree. They eat the wood the
nearest the bark, or the alburnum, without attacking the interior, and
bore a vast number of holes and irregular galleries. That part of the
wood appears moist, and is covered with little gelatinous particles,
not unlike gum-arabic. These insects seem to be furnished with an
acid of a very penetrating odour, which perhaps is useful to them for
softening the wood[48]. The soldiers in these societies are as about
one to twenty-five of the labourers[49]. The anonymous author of
the observations on the Termites of Ceylon seems to have
discovered a sentry-box in his nests. "I found," says he, "in a very
small cell in the middle of the solid mass, (a cell about half an inch
in height, and very narrow,) a larva with an enormous head.—Two of
these individuals were in the same cell:—one of the two seemed
placed as sentinel at the entrance of the cell. I amused myself by
forcing the door two or three times;—the sentinel immediately
appeared, and only retreated when the door was on the point to be
stopped up, which was done in three minutes by the labourers."

I hope this account has reconciled you in some degree to the

destructive Termites:—I shall next introduce you to social insects,
concerning most of which you have probably conceived a more
favourable opinion;—I mean those which constitute the second class
of perfect societies, whose workers are not larvæ, but neuters.
These all belong to the Hymenoptera order of Linné:—there are four
kinds of insects in this order, (which you will find as fertile in the
instructors of mankind, as you have seen it to be in our
benefactors,) that, varying considerably from each other in their
proceedings as social animals, separately merit your attention:
namely, ants, wasps and hornets, humble-bees, and the hive-bee. I
begin with the first.
Full of interesting traits as are the history and economy of the white-
ants, and however earnestly they may induce you to wish you could
be a spectator of them, yet they scarcely exceed those of an
industrious tribe of insects, which are constantly passing under our
eye. The ant has attracted universal notice, and been celebrated
from the earliest ages, both by sacred and profane writers, as a
pattern of prudence, foresight, wisdom, and diligence. Upon
Solomon's testimony in their favour I have enlarged before; and for
those of other ancient writers, I must refer you to the learned
Bochart, who has collected them in his Hierozoicon.
In reading what the ancients say on this subject, we must be
careful, however, to separate truth from error, or we shall attribute
much more to ants than of right belongs to them. Who does not
smile when he reads of ants that emulate the wolf in size, the dog in
shape, the lion in its feet, and the leopard in its skin; ants, whose
employment is to mine for gold, and from whose vengeance the
furtive Indian is constrained to fly on the swift camel's back[50]? But
when we find the writers of all nations and ages unite in affirming,
that, having deprived it of the power of vegetating, ants store up
grain in their nests, we feel disposed to give larger credit to an
assertion, which, at first sight, seems to savour more of fact than of
fable, and does not attribute more sagacity and foresight to these
insects than in other instances they are found to possess. Writers in
general, therefore, who have considered this subject, and some even
of very late date, have taken it for granted that the ancients were
correct in this notion. But when observers of nature began to
examine the manners and economy of these creatures more
narrowly, it was found, at least with respect to the European species
of ants, that no such hoards of grain were made by them, and, in
fact, that they had no magazines in their nests in which provisions of
any kind were stored up. It was therefore surmised that the
ancients, observing them carry about their pupæ, which in shape,
size, and colour, not a little resemble a grain of corn, and the ends of
which they sometimes pull open to let out the inclosed insect,
mistook the one for the other, and this action for depriving the grain
of the corculum. Mr. Gould, our countryman, was one of the first
historians of the ant, who discovered that they did not store up corn;
and since his time naturalists have generally subscribed to that
opinion.
Till the manners of exotic ants are more accurately explored, it
would, however, be rash to affirm that no ants have magazines of
provisions; for although, during the cold of our winters in this
country, they remain in a state of torpidity, and have no need of
food, yet in warmer regions, during the rainy seasons, when they
are probably confined to their nests, a store of provisions may be
necessary for them. Even in northern climates, against wet seasons,
they may provide in this way for their sustenance and that of the
young brood, which, as Mr. Smeathman observes, are very
voracious, and cannot bear to be long deprived of their food; else
why do ants carry worms, living insects, and many other such things
into their nests? Solomon's lesson to the sluggard has been
generally adduced as a strong confirmation of the ancient opinion: it
can, however, only relate to the species of a warm climate, the
habits of which, as I have just observed, are probably different from
those of a cold one;—so that his words, as commonly interpreted,
may be perfectly correct and consistent with nature, and yet be not
at all applicable to the species that are indigenous to Europe. But I
think, if Solomon's words are properly considered, it will be found
that this interpretation has been fathered upon them, rather than
fairly deduced from them. He does not affirm that the ant which he
proposes to his sluggard as an example, laid up in her magazines
stores of grain: "Go to the ant thou sluggard, consider her ways and
be wise; which, having neither captain, overseer, nor ruler, prepares
her bread in the summer, and gathers her food in the harvest."
These words may very well be interpreted simply to mean, that the
ant, with commendable prudence and foresight, makes use of the
proper seasons to collect a supply of provision sufficient for her
purposes. There is not a word in them implying that she stores up
grain or other provision. She prepares her bread, and gathers her
food,—namely, such food as is suited to her,—in summer and
harvest,—that is, when it is most plentiful,—and thus shows her
wisdom and prudence by using the advantages offered to her. The
words thus interpreted, which they may be without any violence, will
apply to our European species as well as to those that are not
indigenous.
I shall now bid farewell to the ancients, and proceed to lay before
you what the observations of modern authors have enabled me to
add to the history of ants:—the principal of these are Leeuwenhoek,
Swammerdam (who was the first that had recourse to artificial
means for observing their proceedings), Linné, Bonnet, and
especially the illustrious Swedish entomologist De Geer. Gould also,
who, though no systematical naturalist, was a man of sense and
observation, has thrown great light upon the history of ants, and
anticipated several of what are accounted the discoveries of more
modern writers on this subject[51]. Latreille's Natural History of Ants
is likewise extremely valuable, not only as giving a systematic
arrangement and descriptions of the species, but as concentrating
the accounts of preceding authors, and adding several interesting
facts ex proprio penu. The great historiographer of ants, however, is
M. P. Huber; who has lately published a most admirable and
interesting work upon them, in which he has far outstripped all his
predecessors.—Such are the sources from which the following
account of ants is principally drawn, intermixed with which you will
find some occasional observations,—which your partiality to your
friend may, perhaps, induce you to think not wholly devoid of
interest,—that it has been my fortune to make.
The societies of ants, as also of other Hymenoptera, differ from
those of the Termites in having inactive larvæ and pupæ, the
neuters or workers combining in themselves both the military and
civil functions. Besides the helpless larvæ and pupæ, which have no
locomotive powers, these societies consist of females, males, and
workers. The office of the females, at their first exclusion
distinguished by a pair of ample wings, (which however, as you have
heard, they soon cast,) is the foundation of new colonies, and the
furnishing of a constant supply of eggs for the maintenance of the
population in the old nests as well as in the new. These are usually
the least numerous part of the community[52]. The office of the
males, which are also winged, and at the time of swarming are
extremely numerous, is merely the impregnation of the females:
after the season for this is passed, they die. Upon the workers[53]
devolves, except in nascent colonies, all the work, as well as the
defence of the community, of which they are the most numerous
portion. In some societies of ants the workers are of two
dimensions.—In the nests of F. rufa and flava such were observed by
Gould, the size of one exceeding that of the other about one
third[54]. (In my specimens, the large workers of F. rufa are nearly
three times, and of F. flava twice, the size of the small ones.) All
were equally engaged in the labours of the colony. Large workers
were also noticed by M. P. Huber in the nests of Polyergus
rufescens[55], but he could not ascertain their office.
Having introduced you to the individuals of which the associations of
ants consist, I shall now advert to the principal events of their
history, relating first the fates of the males and females. In the warm
days that occur from the end of July to the beginning of September,
and sometimes later, the habitations of the various species of ants
may be seen to swarm with winged insects, which are the males and
females, preparing to quit for ever the scene of their nativity and
education. Every thing is in motion—and the silver wings contrasted
with the jet bodies which compose the animated mass, add a degree
of splendour to the interesting scene. The bustle increases, till at
length the males rise, as it were by a general impulse, into the air,
and the females accompany them. The whole swarm alternately
rises and falls with a slow movement to the height of about ten feet,
the males flying obliquely with a rapid zigzag motion, and the
females, though they follow the general movement of the column,
appearing suspended in the air, like balloons, seemingly with no
individual motion, and having their heads turned towards the wind.
Sometimes the swarms of a whole district unite their infinite
myriads, and, seen at a distance, produce an effect resembling the
flashing of an aurora borealis. Rising with incredible velocity in
distinct columns, they soar above the clouds. Each column looks like
a kind of slender net-work, and has a tremulous undulating motion,
which has been observed to be produced by the regular alternate
rising and falling just alluded to. The noise emitted by myriads and
myriads of these creatures does not exceed the hum of a single
wasp. The slightest zephyr disperses them; and if in their progress
they chance to be over your head, if you walk slowly on, they will
accompany you, and regulate their motions by yours. The females
continue sailing majestically in the centre of these numberless
males, who are all candidates for their favour, each till some
fortunate lover darts upon her, and, as the Roman youth did the
Sabine virgins, drags his bride from the sportive crowd, and the
nuptials are consummated in mid-air; though sometimes the union
takes place on the summit of plants, but rarely in the nests[56]. After
this danse de l'amour is celebrated, the males disappear, probably
dying, or becoming, with many of the females, the prey of birds or
fish[57]; for, since they do not return to the nest, they cannot be
destroyed, as some have supposed, like the drone bees, by the
neuters. That many, both males and females, become the prey of
fish, I am enabled to assert from my own observation.—In the
beginning of August 1812, I was going up the Orford river in Suffolk,
in a row-boat, in the evening, when my attention was caught by an
infinite number of winged ants, both males and females, at which
the fish were every where darting, floating alive upon the surface of
the water. While passing the river, these had probably been
precipitated into it, either by the wind, or by a heavy shower which
had just fallen. And M. Huber after the same event observed the
earth strewed with females that had lost their wings, all of which
could not form colonies[58].
Captain Haverfield, R. N. gave me an account of an extraordinary
appearance of ants observed by him in the Medway, in the autumn
of 1814, when he was first-lieutenant of the Clorinde—which is
confirmed by the following letter addressed by the surgeon of that
ship, now Dr. Bromley, to Mr. MacLeay:
"In September 1814, being on the deck of the hulk to the Clorinde,
my attention was drawn to the water by the first-lieutenant
(Haverfield) observing there was something black floating down with
the tide. On looking with a glass, I discovered they were insects.—
The boat was sent, and brought a bucket full of them on board;—
they proved to be a large species of ant, and extended from the
upper part of Salt-pan reach out towards the Great Nore, a distance
of five or six miles. The column appeared to be in breadth eight or
ten feet, and in height about six inches, which I suppose must have
been from their resting one upon another." Purchas seems to have
witnessed a similar phenomenon on shore. "Other sorts (of ants),"
says he, "there are many, of which some become winged and fill the
air with swarms, which sometimes happens in England. On
Bartholomew 1613 I was in the island of Foulness on our Essex
shore, where were such clouds of these flying pismires, that we
could no where fly from them, but they filled our clothes; yea the
floors of some houses where they fell were in a manner covered
with a black carpet of creeping ants; which they say drown
themselves about that time of the year in the sea[59]."
These ants were winged:—whence, in the first instance here related,
this immense column came was not ascertained. From the numbers
here agglomerated, one would think that all the ant-hills of the
counties of Kent and Surrey could scarcely have furnished a
sufficient number of males and females to form it.
When Colonel Sir Augustus Frazer, of the Horse Artillery, was
surveying on the 6th of October 1813 the scene of the battle of the
Pyrenees from the summit of the mountain called Pena de Aya, or
Les Quatre Couronnes, he and his friends were enveloped by a
swarm of ants, so numerous as entirely to intercept their view, so
that they were glad to remove to another station, in order to get rid
of them.
The females that escape from the injury of the elements and their
various enemies, become the founders of new colonies, doing all the
work, as I have related in a former letter, that is usually done by the
neuters[60]. M. P. Huber has found incipient colonies, in which were
only a few workers engaged with their mother in the care of a small
number of larvæ; and M. Perrot, his friend, once discovered a small
nest, occupied by a solitary female, who was attending upon four
pupæ only. Such is the foundation and first establishment of those
populous nations of ants with which we every where meet.
But though the majority of females produced in a nest probably thus
desert it, all are not allowed this liberty. The prudent workers are
taught by their instinct that the existence of their community
depends upon the presence of a sufficient number of females. Some
therefore that are fecundated in or near the spot they forcibly
detain, pulling off their wings, and keeping them prisoners till they
are ready to lay their eggs, or are reconciled to their fate. De Geer in
a nest of F. rufa observed that the workers compelled some females
that were come out of the nest, to re-enter it[61]; and from M. P.
Huber we learn that, being seized at the moment of fecundation,
they are conducted into the interior of the formicary, when they
become entirely dependent upon the neuters, who hanging
pertinaciously to each leg prevent their going out, but at the same
time attend upon them with the greatest care, feeding them
regularly, and conducting them where the temperature is suitable to
them, but never quitting them a single moment. By degrees these
females become reconciled to their fate, and lose all desire of
making their escape;—their abdomen enlarges, and they are no
longer detained as prisoners, yet each is still attended by a body-
guard—a single ant, which always accompanies her, and prevents
her wants.—Its station is remarkable, it being mounted upon her
abdomen, with its posterior legs upon the ground. These sentinels
are constantly relieved: and to watch the moment when the female
begins the important work of oviposition, and carry off the eggs, of
which she lays four or five thousand or more in the course of the
year, seems to be their principal office.
When the female is acknowledged as a mother, the workers begin to
pay her a homage very similar to that which the bees render to their
queen. All press round her, offer her food, conduct her by her
mandibles through the difficult or steep passages of the formicary;
nay, they sometimes even carry her about their city;—she is then
suspended upon their jaws, the ends of which are crossed; and,
being coiled up like the tongue of a butterfly, she is packed so close
as to incommode the carrier but little. When she sets her down,
others surround and caress her, one after another tapping her on the
head with their antennæ. "In whatever apartment," says Gould, "a
queen condescends to be present, she commands obedience and
respect. An universal gladness spreads itself through the whole cell,
which is expressed by particular acts of joy and exultation. They
have a particular way of skipping, leaping, and standing upon their
hind-legs, and prancing with the others. These frolics they make use
of, both to congratulate each other when they meet, and to show
their regard for the queen; some of them gently walk over her,
others dance round her; she is generally encircled with a cluster of
attendants, who, if you separate them from her, soon collect
themselves into a body, and inclose her in the midst[62]." Nay, even
if she dies, as if they were unwilling to believe it, they continue
sometimes for months the same attentions to her, and treat her with
the same courtly formality as if she were alive, and they will brush
her and lick her incessantly[63].
This homage paid by the workers to their queens, according to
Gould, is temporary and local;—when she has laid eggs in any cell,
their attentions, he observed, seemed to relax, and she became
unsettled and uneasy. In the summer months she is to be met with
in various apartments in the colony; and eggs also are to be seen in
several places, which induced him to believe that, having deposited
a parcel in one, she retires to another for the same purpose, thus
frequently changing her situation and attendants. As there are
always a number of lodgements void of eggs but full of ants, she is
never at a loss for an agreeable station and submissive retinue: and
by the time she has gone her rounds in this manner, the eggs first
laid are brought to perfection, and her old attendants are glad to
receive her again. Yet this inattention after oviposition is not
invariable; the female and neuters sometimes unite together in the
same cell after the eggs are laid. On this occasion the workers divide
their attention; and if you disturb them, some will run to the defence
of their queen, as well as of the eggs, which last, however, are the
great objects of their solicitude. This statement differs somewhat
from M. Huber's; but different species vary in their instincts, which
will account for this and similar dissonances in authors who have
observed their proceedings. Mr. Gould also noticed but very few
females in ant-nests, sometimes only one; but M. Huber, who had
better opportunities, found several, which he says live very
peaceably together, showing none of that spirit of rivalry so
remarkable in the queen bee.
And here I must close my narrative of the life and adventures of
male and female ants; but, as it will be followed by a history of the
still more interesting proceedings of the workers, I think you will not
regret the exchange. I shall show these to you in many different
views, under each of which you will find fresh reason to admire them
and their wonderful instincts. My only fear will be lest you should
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