Byrne v. Deane.

Court of Appeal

CA

Greer, Slesser and Greene L.JJ.

1937 March 2.

Defamation--Libel--Publication--Notice put up on wall of club--Failure by owners of club to take notice down--Suggestion that some one had reported certain wrongful acts to police--Whether words were capable of a defamatory meaning--Whether the owners of club by failing to take notice down had published the libel.
The plaintiff was a member of a golf club of which the two defendants were the proprietors and the female defendant also the secretary. One of the rules of the club provided that "no notice or placard shall be posted in the club premises without the consent of the secretary." Certain automatic gambling machines had been kept by the defendants on the club premises for the use of the members of the club. Some one gave information to the police, with the result that the machines were removed from the club premises. On the following day some one put up on the wall of the club a typewritten paper containing the following verse:-
"For many years upon this spot
"You heard the sound of a merry bell
"Those who were rash and those who were not
"Lost and made a spot of cash
"But he who gave the game away
"May he byrnn in hell and rue the day."
The word "byrnn" was blacked out in the original and the word "burn " substituted for it. The plaintiff brought a libel action against the two defendants alleging that they had published the words in the notice of and concerning him to the members of the club. He alleged that the words meant that he had reported to the police the existence of the machines upon the club premises and that he had been guilty of underhand disloyalty to the members of the club. Hilbery J. held that the words were defamatory of the plaintiff, and that as the defendants had complete control of the walls of the club and could have removed the paper after they had seen it, the publication had been made with their approval, and he awarded the plaintiff nominal damages. On an appeal by the defendants:-
Held, by Slesser and Greene L.JJ., Greer L.J. dissenting, reversing Hilbery J., that the words were not capable of a defamatory meaning. To say of a man that he had put in motion the proper machinery for suppressing crime could not on the face of it be defamatory.
Per Greer L.J. that the words were defamatory of the plaintiff, and that the two defendants by allowing the defamatory *819 statement to remain on the wall of the club were taking part in the publication of it.
Per Slesser L.J. that there was no evidence of publication by the male defendant, as the affairs of the club were by its rules managed by a committee of seven members; but that there was some evidence of publication by the female defendant.
Per Greene L.J. that there was evidence of publication of the libel by both the defendants.
APPEAL from a decision of Hilbery J. in an action tried at Lewes Assizes.
The plaintiff, Edmund Joseph Byrne, was a member of the Seaford Head Golf Club, and the two defendants, Robert Heward Deane and his wife Aletta Felicia Deane, were the proprietors and sole directors of the club, and the female defendant was also the secretary of the club.
Rule 2 of the rules of the club provided:
"No member of the club or of the committee who is not also a director shall be under any liability whatsoever, or become liable or responsible for any expense in respect of the club."
Rule 3:
"The affairs of the club shall be managed by a committee of seven members."
Rule 12:
"No notice or placard, written or printed, shall be posted in the club premises without the consent of the secretary."
Certain automatic machines known as "diddler" machines which were gambling machines had been kept by the defendants upon the club premises since the year 1932 for the use of the members of the club. They were profitable machines for the proprietors of the club, who did not own the machines, but who received a share of the profits of the machines for allowing them to be on the club premises. Some one gave information to the police as to the existence of these machines on the club premises which led the police on August 26, 1935, to make a complaint to the defendants, and to require them to remove the diddler machines, and the defendants thereupon removed the machines from the club premises.
On August 27 some one put up on the wall of the club against which the automatic machines had formerly stood a typewritten paper containing the following doggerel verse:- *820
"For many years upon this spot
"You heard the sound of a merry bell
"Those who were rash and those who were not
"Lost and made a spot of cash
"But he who gave the game away
"May he byrnn in hell and rue the day
"Diddleramus."
The word "byrnn" was blacked out in the original typescript and the word "burn" substituted for it, but under the typescript there was a carbon copy in which the word remained "byrnn" and any person desiring to see what the word was which had been obliterated in the typescript had only to lift up the typescript and look at the carbon copy underneath.
The plaintiff brought a libel action against the two defendants alleging that they had published or caused to be published the words in the notice of and concerning him to the members of the club.
He alleged in para. 6 of the statement of claim that
"by the said words the defendants meant and were understood to mean that the plaintiff had reported to the police the presence of the said machines upon the said premises, that he was guilty of underhand disloyalty to the defendants and his fellow members of the said club and that by reason of the said facts his conduct was deserving of the gravest censure, that he was a person devoid of all true sporting spirit, and further that he was a person unfit for other members of the club to associate with and should be ostracised by them."
The defendants admitted that they saw the notice on the wall, but denied having written it or put it there. The female defendant said at the trial that as secretary she was responsible for consenting to any notices that were posted in the club, and that she might have removed the verse if she had thought it harmful, but she thought that one member of the club was poking fun at another.
Hilbery J. held that the words of the notice were defamatory of the plaintiff and that as the defendants had complete control of the walls of the club and could have taken down *821 the paper after they had seen it, the continued publication to all such persons as should come into the club and see the writing could only have been done with their approval. He accordingly gave judgment for the plaintiff for 40s. damages and costs.
The defendants appealed.
Tristram Beresford K.C. and Harold J. Brown for the appellants. This case raises a point upon which there is no authority - namely, whether if the occupier of a house sees something upon the walls of his house which has been put there by some other person, and which may be a libel upon a third person, and does not remove it, he can be said to have published the libel himself. Rule 12 of the club rules upon which the plaintiff relied ought not to be construed so as to mean that the notice must be deemed to have been authorized by Mrs. Deane, the secretary of the club, because according to the rule it could not have been put up without her consent. In fact it was put up without her consent or knowledge. It was never suggested at the trial that the lampoon was either written or put up by either of the defendants. It was, however, said that Mrs. Deane was liable because she did not take the notice down after she saw it on the wall. It is said that allowing the libel to remain on the wall after reading it amounted to a publication of the libel by the two defendants. "Publication" was defined by Lord Esher M.R. in Pullman v. Hill & Co. [FN1] as "The making known the defamatory matter after it has been written to some person other than the person of whom it is written." If some one puts a libel upon the wall of a house, and the occupier of the house knows it is there and does not remove it, he cannot be said to have published the libel. If the libel has been cut into the stonework of the house the occupier when he sees the libel is surely not obliged to reface the stonework of his house or pull the wall down, with the alternative that if he does not do that he will be liable for the publication of the libel.
FN1 [1891] 1 Q. B. 524, 527.
*822 [GREENE L.J. The answer must depend upon the facts of each particular case as it arises.]
In the present case there never was any publication by the two defendants, and the fact that they allowed the lampoon to remain on the wall of the club for some days cannot amount to publication. A man does not publish a libel which he sees upon the walls of his house because he does not remove it. If, however, he draws the attention of passers-by to the libel he is adopting it and republishing it. But merely permitting the libel to remain on the wall without doing an overt act cannot amount to a publication of the libel. By rule 3 of the club rules the affairs of the club are managed by a committee of seven members. That included the control of the club premises and of notices exhibited on the club walls, and therefore the male defendant cannot be held responsible for the publication of this libel.
These words are not defamatory. To amount to a libel the words must tend to lower the plaintiff in the estimation of society generally. If the words only tend to bring the plaintiff into odium, ridicule or contempt with a particular class or section of society, they are not libellous. A fortiori the words are not libellous if the standard of opinion of such limited class or section of society is one which the Courts cannot recognize or approve: see Gatley on Libel and Slander, 2nd ed., p. 15.
[GREER L.J. referred to Tolley v. J. S. Fry & Co., Ld. [FN2]]
FN2 [1931] A. C. 333.
That case was a very different case from the present one. In Mawe v. Pigott [FN3] an Irish priest sued for words charging him with being an informer against a certain class of Irish criminals. Counsel for plaintiff argued that, amongst certain classes who were either themselves criminal, or who sympathized with crime, it would expose a person to great odium to represent him as an informer, or a prosecutor, or otherwise acting in the detection of crime. The Court in a judgment delivered by Lawson J. said [FN4]:
"That is quite true, but we cannot be called upon to adopt that standard. The very circumstances which will make a person be regarded *823 with disfavour by the criminal classes will raise his character in the estimation of right-thinking men. We can only regard the estimation in which a man is held by society generally."
FN3 (1869) Ir. R. 4 C. L. 54.
FN4 Ir. R. 4 C. L. 62.
In the present case, assuming that the plaintiff gave information to the police of the existence of these gaming machines in this club, he would only be doing something which a good citizen would do. The putting up on the walls of the club of a notice that the police had been informed by Byrne would not be a libel upon him, as it would be merely saying that he did what it was his duty as a good citizen to do. What has to be considered is what society generally thought about the matter and not what the members of the club thought about it. The use of these machines amounted to criminal gambling, for which clubs are prosecuted every day. Whoever gave information to the police was only acting as a good citizen. There could be nothing improper in conveying information to the police.
[GREENE L.J. Suppose a man were a member of this club and also of an anti-gambling club. He might bring actions for libel in respect of two diametrically opposite notices. That would certainly be a curious result.]
John Flowers K.C. and G. A. Thesiger for the respondent. In the history of this matter it is important to remember that Deane was very angry with Byrne because Byrne communicated to the authorities that Deane was cutting gorse on the golf course near to Byrne's house. Deane told Byrne that if he was not satisfied he might go to another golf club. That is important having regard to the fact that Deane did not take down the lampoon from the wall when he saw it. Deane said he wondered whether Byrne would see it and put the cap on, and therefore it was present to his mind that it might refer to Byrne, and nevertheless he allowed it to remain on the wall of the club. Deane was the proprietor of the club and one of its two directors, and therefore he might have removed it. It is stated in Rex v. Paine [FN5] and again in Reg. v. Drake [FN6] that "if one repeat and another write a libel, and a third approve what is wrote, they are all makers of it." Having *824 regard to the position held by the defendants, they having the control of the premises, there was a definite act by them in leaving the lampoon up on the wall of the club. The rule that a committee of seven had control could be altered. The point was not taken in the Court below that only the committee could remove the lampoon; the point taken there was that there was no publication by the defendants, because leaving the notice up on the wall did not amount to publication.
FN5 (1694) 5 Mod. 163, 167.
FN6 (1706) Holt K. B. 426.
[SLESSER L.J. In Hird v. Wood [FN7]the defendant sat on a stool near a placard which had been put up on the roadway containing defamatory matter. He remained there for a long time smoking a pipe and he continually pointed at the placard with his finger and thereby attracted to it the attention of all who passed by. It was held by Pollock B. that there was no evidence of publication, but the Court of Appeal held that there was evidence of publication and ordered a new trial.]
FN7 (1894) 38 Sol. J. 234.
If defamatory matter is left on the wall of premises by a person who has the power to remove the defamatory matter from the wall he can be said to have published the defamatory matter to the persons who read it. In the case of De Libellis Famosis [FN8]Lord Coke points out the various ways a libel may be published and instances the fixing some disparaging object at the party's door.
FN8 (1605) 5 Coke, 125a.
[SLESSER L.J. referred to Halliwood's Case [FN9] in the Star Chamber, where it was resolved that if one finds a libel, and would keep himself out of danger, if it be composed against a private man, the finder may either burn it or deliver it to a magistrate.]
FN9 (1601) referred to in 5 Coke, 125b.
It is stated in Starkie's Law of Slander and Libel, 2nd ed., vol. ii., p. 225, that
"According to the general rule of law, it is clear that all who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication"
and at p. 239
"Upon the whole, .... it seems to be perfectly clear that every person who maliciously lends his aid to the construction of a libel, subsequently *825 published, or who contributes to the publication of one already made, with a knowledge of its contents, is indictable as a principal for the whole mischief produced."
Mr. Deane knew for two or three days that the libel was on the wall and did nothing. Leaving the notice on the wall amounted to an overt act by the two defendants so that they are responsible for the publication of this libel.
This lampoon is capable of a defamatory meaning. It is true that there is a duty upon every one to report to the police the commission of a felony, otherwise the person who fails to do so may become an accessory to the crime; but there is no duty to report the commission of a misdemeanour, and keeping these diddler machines on the club premises only amounted to a misdemeanour. The sting of the libel in this case is that it alleges that the plaintiff has been disloyal to the fellow members of his club. All clubmen would regard the alleged conduct of the plaintiff as one of disloyalty to his club. In deciding whether words are capable of a defamatory meaning one must look at all the circumstances of the case. It may be a libel to say that a man reported a certain matter to the police. In Graham v. Roy [FN10]it was held by the Court of Session in Scotland that the propagation of a report, that a person had given information to the officers of Excise against a distiller, and assumed the office of a common informer in order that he might obtain one-half of the penalties awarded, afforded relevant ground for a claim for damages. In that case it was raised by the defence that "an informer was a legal officer, and it was not slander in the eye of the law to say that a man gave information which had the effect of repressing an illegal act, such as smuggling." Lord Fullerton there said [FN11]: