818 KING’S BENCH DIVISION. [1987] CA BYRNE v. DEANE. 1937 March 2. [1935. B. 3406.) 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 dis- loyalty 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1K. B. KING’S BENCH DIVISION. 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 receivéd 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 there- upon 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 :— 819 CA. 1937 ‘BYRNE. v, DEANE.820 CGA. 1937 BYRNE v. Deane. KING’S BENCH DIVISION. [1987] “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 type- script 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1K. B. KING’S BENCH DIVISION. 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 4os. damages and costs. The defendants appealed. Tristram Beresford K.C. and Harold J. Brown for the appel- lants. 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. (1) 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 stone- work 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. (x) (1891) 1 Q. B. 524, 527. Vor. I. 1937. 3K 2 82r CAL 1937 BYRNE v. Deane,822 CA. 1937 BYRNE a Dzanz. KING’S BENCH DIVISION. [1987] (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 com- mittee 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, and ed., p. 15. [Greer L.J. referred to Tolley v. J. S. Fry & Co., Ld. (1)] That case was a very different case from the present one. In Mawe v. Pigott (2) 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 (3): “That is quite true, but we cannot be called upon to adopt that standard. The very circumstances which will make a person be regarded (x) [1931] A. C. 333. (3) In. R. 4. L. 62, (2) (1869) Ir. R.4C. Le 54.1K. B. KING’S BENCH DIVISION. 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.” 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 con- sidered 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 communi- cated 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 (1) and again in Reg. v. Drake (2) that “if one repeat and another write a libel, and a third approve what is wrote, they are all makers of it.” Having (1) (1694) 5 Mod. 163, 167. (2) (1706) Holt K. B. 426. Vot. I. 1937. 3L 2 8: CA 1937 BYRNE 0. Deane. 23824 CA. 31937 BYRNE vw Deane. KING’S BENCH DIVISION. [1987] 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 com- mittee 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. (Stesser L.J. In Hird v. Wood (1) 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.) 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 (2) Lord Coke points out the various ways a libel may be published and instances the fixing some disparaging object at the party’s door. (StessEr L.J. referred to Halliwood’s Case (3) 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.] It is stated in Starkie’s Law of Slander and Libel, 2nd ed., vol. 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 (x) (1894) 38 Sol. J. 234. (3) (1601) referred to in 5 Coke, 1255, (2) (1605) 5 Coke, 1252,1K.B. KING’S BENCH DIVISION. 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 (1) 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 (2): “(If you publish on the streets of a town that a man is a common informer, is that not slander? It may be perfectly legitimate to give information, but an informer is by no means a popular character.” In Winn v. Quillan (3) an action of damages for slander was raised in which the pursuer averred that the defender had repeatedly (x) (1851) 13 D. 634. (3) (1899) 37 Sc. L. R. 38. (2) Ibid. 636. Vor. I. 1937. 3M 2 825 CAL 1937 BYRNE a Deane.826 CAL 1937 BYRNE v DEANE. KING’S BENCH DIVISION. [1937] designated him to others as an informer, thereby representing that he was “a man who for the sake of reward, and from sinister and disreputable motives had betrayed his fellows, and disclosed secrets or given information to the Crown or its executive against Irishmen and others,” and it was held by the Court of Session that the action was relevant, and an issue allowed with an innuendo in the above terms. [SLEsser L.J. Those cases are inconsistent with Mawe v. Pigott (1), where it was held that to call a man an informer was not defamatory.] (Greer L.J. Lord Tomlin in Tolley v. J. S. Fry & Co., Ld., said (2): “ Regarded in vacuo it is admittedly innocent, but the question remains whether it is capable of a defamatory meaning by reason of the circumstances surrounding its publication.”] In considering whether these words are capable of a defamatory meaning one must look, first, at the words them- selves, and, secondly, at the circumstances under which they were published. In our submission the words were capable of a defamatory meaning, and were published by both defendants of and concerning the plaintiff. The appeal ought therefore to be dismissed. Harold J. Brown in reply. The plaintiff in effect is saying that the defendants did nothing ; that although they did not put the lampoon on the wall they refrained from taking it down from the wall. The plaintiff alleges that there was a duty upon the defendants to prevent the libel being seen by any one. The distinction between positive and negative rights is pointed out by Sir John Salmond in his work on Jurisprudence, 8th ed., § 80, where he says, p. 258, that “while liability for hurtful acts of commission is the general tule, liability for acts of omission is the exception.” There may be a publication of a libel through negligence, but in that case the publication is a positive act. It is said that the defendants have published the libel by allowing it to remain on the wall—that means that they have not done the positive act of taking it down. The presence of the (2). R.4 CL. 54. (2) [1931] A. C. 350.1K. B. KING’S BENCH DIVISION. diddler machines on the club premises made it a gaming-house, and any one resorting thereto was liable to be prosecuted and bound over. The giving information to the police of the existence of the diddler machines was the act of a good citizen, and was something which the person giving the information was entitled to do for his own protection. [Greene L.J. A difficulty in the case is that the law requires a standard of duty which is different from that which a large number of people regard as being the proper standard. Can this Court regard any other standard than that which the Legislature has laid down ?} The law cannot regard the opinion of a limited class of people like the members of a club, but only that of the average reasonable man. In Myroft v. Sleight (1) McCardie J. said that ‘‘ the words complained of must be such as would injure the plaintiff's reputation in the minds of ordinary, just and reasonable citizens.” Lord Atkin in Sim v. Stretch (2) pro- pounded the following test: “‘ Would the words tend to lower the plaintiff in the estimation of right-thinking members of society generally ?” [Suesser L.J. referred to Youssoupoff v. Metro-Goldwyn- Mayer Pictures, Ld. (3) Every word of the innuendo in the present case would be applicable to a burglars’ club. Greer L.J. This appeal raises two points, both of which are difficult questions, and as the judgments of each of the three members of this Court differ it is possible for reasonable men to differ with regard to those questions. The action was brought to recover damages for libel. The learned judge came to the conclusion that the words com- plained of were defamatory of the plaintiff and that as the defendants allowed the notice to remain on the walls of the club, over which they had complete control, after they had seen it the publication of it was made with their approval, and that they had therefore published the libel. He (x) (1921) 90 L. J. (K. B.) (2) (1936) 52 T. L. R. 669, 671. 883, 886, (3) (1934) 50 T. L. R. 581. 3M2 2 827 CA. 1937 BYRNE v, Deanne.828 CA. 1937 BYRNE . Deane. Greer LJ. KING’S BENCH DIVISION. [1987] accordingly gave judgment for the plaintiff for nominal damages and costs. The two defendants appeal from that decision, and they do so on two grounds—namely, first, that the words complained of were not defamatory, and secondly, that there had been no publication of the libel by either of the defendants. If either of those grounds is correct the appeal must succeed. In my opinion the decision of the learned judge was right upon both these points. The publication complained of was of something which is commonly called a lampoon, which was put up on the walls —not on the notice-board—of a proprietary club, and which was in these words :— “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 burn in hell and rue the day “ Diddleramus.” The word “burn” was originally spelt “byrnn,” but at some time before the male defendant saw the notice the word was altered to “burn.” But there cannot be the slightest doubt but that the members of the club who read the lampoon associated it with the plaintiff, as did also the two defendants. In my opinion it is immaterial that the word “ byrnn” was subsequently spelt “ burn.” Two questions arise in this case: (1.) Was the learned judge right in holding that the words were capable of a defama- tory meaning? and (2.) Was he right in holding that they were published by the defendants of and concerning the plaintiff ? What happened was that in the year 1932 two machines had been installed in this club, which are called fruit machines, they are also called “ diddler ’’ machines. The person operating one of these machines puts a coin in and pulls a handle; if the machine stops at a certain spot it releases more coins than were put in. They were undoubtedly gaming machines. Mr. Byrne, who complains of the lampoon, and that is the1K, B. KING’S BENCH DIVISION, basis of the case, said that the words that were published referred to him, and he established that contention to the satisfaction of the learned judge. It is said by counsel for the defendants that there is no evidence before the learned judge on which he could find that the two defendants published this defamatory statement. Now the position as regards that was this: it was not put up on the wall by either of the two defendants. It was put on the wall by somebody else, probably by some member of the club; but undoubtedly the secretary of the club under the powers given to her by rule rz, she not having consented to it being put up, was entitled to take it down. By allowing the lampoon to remain upon the wall when she had not consented to its being put up, and therefore could have taken it down, she was a consenting party to the defamatory state- ment, if it was defamatory, remaining upon the wall of the club. She and her husband, as it is pleaded, were directors and proprietors of this club. It was a proprietary club. The difference between a proprietary club and an ordinary club is that in a proprietary club the proprietor or proprietors remain in possession of the club. The two defendants are the lessees of the club and they are the occupiers of the club premises, and the walls are their walls, and in my judgment they allowed a defamatory statement to be put up on their walls and to remain on their walls in a position in which it could be read by anybody who came into the club. Un- doubtedly it must have been so read not only by people who were members of the club but by people who were not members of the club, and who only came in possibly for a drink with a member or to play a game of some sort or another. Quite a number of illustrations have been put forward as illustrations which give rise to similar questions to the question that arises in this case. In my judgment the nearest case put forward is this: assume that a defamatory poster was hung upon the garden rail of Mr. Smith’s house which adjoins the street so that the defamatory statement can be read by every one who passes the house. Could it not be said that by allowing that poster to remain hanging upon the garden 829 CAL 1973 BYRNE v. Deane. Greer LJ.830 CA. 1937 BYRNE v, Drang. Greer LJ. KING’S BENCH DIVISION. [1937] rail of his house the occupier of the house was taking part in the publication of that poster to people passing his house, when the simplest operation in the world, namely, cutting the rope by which the poster was hung upon the rail and taking the poster away, would have made the poster from that time innocuous? In my judgment the two proprietors of this establishment by allowing the defamatory statement, if it be defamatory, to rest upon their wall and not to remove it, with the knowledge that they must have had that by not removing it it would be read by people to whom it would convey such meaning as it had, were taking part in the publication of it. The second question is, in my opinion, one of much greater difficulty, and it is this: Was the statement defamatory ? There is no question but that it did in fact refer to the plaintiff, and the defamatory part of it, in my judgment, is contained in the words: “But he who gave the game away May he burn in Hell and rue the day.” It does not seem to me that that statement was correctly interpreted in the innuendo, because the plaintiff may rely upon the natural meaning of the words, quite apart from the innuendo. One must dis- tinguish between the question as to what a defamatory statement means, and the question whether that defamatory statement is or is not true. It may well be, if it had been necessary to deal with the matter, that it might have been said by the plaintiff that the defamatory statement was not true because he had not been guilty of any disloyalty to his fellow members because he had only done that which was his duty, But that is not the question. The question is, What is the meaning which any reasonable man would attach to the statement contained in this document? In my judgment the statement in the document in question is a statement that the plaintiff who gave the game away was guilty of disloyalty to his fellow members of the club. Whether that was justified or not is quite another matter. That it would be regarded by any reasonable person as defamatory to say of a man that he was guilty of disloyalty to the fellow members of the club to which he belonged I do not think1K.B. KING’S BENCH DIVISION. there is any question. It would in my judgment be a defamatory statement which would entitle him to bring an action in order to recover damages quite independently of the innuendo. But if it is necessary to go to the innuendo I find in the innuendo this statement, that the words meant, amongst other things, that he was guilty of underhand disloyalty to the defendants and his fellow members of the club. In ray judgment the words are capable of that meaning, and the learned judge was entitled to decide that that is what they did mean, and we need not consider whether or not the facts when proved would show that that statement was wholly unfounded, that is to say that it was not true. We have not got to consider that. We have only got to consider what the words would convey to an ordinary reason- able member of the club, and in my judgment they would convey either in their natural meaning or as stated in the innuendo that the plaintiff had been guilty of under- hand disloyalty to the defendants and his fellow members of the club, and that therefore the learned judge was justified in finding not only that the words were capable of a defamatory meaning but that they were defamatory of the plaintiff. I have not thought it necessary to refer to the various cases that have been cited. I am inclined to think that the Scottish judges were right in thinking that it does damage a man in the eyes of reasonable persons to call him an informer. If one had to choose between the Scottish cases and the Irish case I should follow the Scottish cases. For the reasons I have given I think the learned judge was right on both points and that the judgment that he gave for the plaintiff for gos. and costs ought not to be reversed by this Court ; but I am afraid, as my brothers are of a different opinion, quite possibly for other reasons but that will not matter, the appeal will be dealt with as they state. StessER L.J. In this case, as my Lord has indicated, I regret to say that I have come to a conclusion different from that at which he has arrived, 831 CA. 1937 BYRNE v DEANE. Greer LJ.832 icra 1937 BYRNE 0. DEANE. Slesser LJ KING’S BENCH DIVISION. [1987} My conclusion in this appeal in part applies to both the defendants and in part only to one of them in thinking that the appeal must be allowed and, therefore, it will be convenient first to deal with that aspect of the case which applies to both defendants. That part of the case concerns the question whether these words which appear in this doggerel verse can properly be held to be defamatory of the plaintiff at all—in other words whether, had there been a jury in this case, there would have been any case to go to the jury ? In my opinion, the words as set out in the statement of claim cannot on any view be taken to be defamatory apart from the innuendo, I do not think that, taken by themselves, they form any ground of complaint, and, as I understand the case, it was treated upon the basis that the innuendo contained the alleged defamatory meaning of these words, and not the words in their natural and ordinary meaning. That innuendo is thus pleaded in para. 6 of the statement of claim: “ 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.” I read that innuendo to mean that all the consequent disfavours which it is alleged the plaintiff might suffer at the hands of his fellow members of the club would be due and due only to the fact that he had “reported to the police the presence of the said machines upon the said premises,” and so, that being the meaning, of course the natural objections on the part of his fellow members would follow. Now, in my view, to say or to allege of a man—and for this purpose, as my Lord has said, it does not matter whether the allegation is true or is not true—that he has reported1K,B. KING’S BENCH DIVISION. certain acts, wrongful in law, to the police, cannot possibly be said to be defamatory of him in the minds of the general public. We have to consider in this connection the arbitrium boni, the view which would be taken by the ordinary good and worthy subject of the King, and I have assigned to myself no other criterion than what a good and worthy subject of the King would think of some person of whom it had been said that he had put the law into motion against wrongdoers, in considering that such a good and worthy subject would not consider such an allegation in itself to be defamatory. That is the view, as I read it, which was taken by McCardie J. in Myroft v. Sleight (x), where he quotes with approval a judgment of the Irish Court in Mawe v. Pigott (2), where Lawson J. giving the judgment of the Court says this : Counsel for the plaintiff, “however, argued that amongst certain classes who were either themselves criminal, or who sympathised with crime, it would expose a person to great odium to represent him as an informer or a prosecutor, or otherwise aiding in the detection of crime ; that is quite true, but we cannot be called upon to adopt that standard. The very circumstances which will make a person be regarded 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.” Now, it is true that there have been cited to us certain decisions in the Court of Session, which appear on the face of them to take a different view. In the first Scottish case cited to us, namely, Graham v. Roy (3), the actual word which was used about the plaintiff was the word “ informer,” which it was said had or might have a sinister meaning as regards himself. I do not think it necessary in this case to express a decided opinion about the Scottish cases; but I do find it difficult to understand how, so long as the law regards the office of public informer as one to be continued in being (2) 90 L. J. (K. B.) 883, (3) 13 D. 634. (2) Tr. R46. L. 54, 62, 833 CA. 1937 ByRNE834 CAL 1937 BYRNE v Deane. Slesser L.J. KING’S BENCH DIVISION. [1987] and one to be protected by the law and recognized, and in certain cases to be productive of reward, it can be said that to call a person by a name which suggests that temporarily he is promoting the interests of the law, is defamatory. But however that may be, it has been argued here that these words in the present case cannot really be said to be defama- tory because in substance the crime which it is suggested’ in the libel that this gentleman is endeavouring to prevent is really of so trivial a character, and one which is so popular with the mass of the people, that to prevent an innocent indulgence in the use of these machines, which have been described as “ diddlers” and also as “fruit” machines, is not preventing a crime, the whole thing is so trivial, and that the real substance of the case is the dislike and animosity which must be created in the minds of his fellow members of the club against the plaintiff. I find it quite impossible, speaking for myself, to draw a distinction between one crime and another in this particular. In no case as it seems to me can it be said that merely to say of a man that he has given information which will result in the ending of a criminal act is in itself defamatory where he is doing no more than reporting to the police that which if known by the police might well end in the discovery of an illegal act and its suppression. For that reason I am unable to see that here there would have been any case to leave to the jury on that head. I pass, shortly, to the other matter which is not essential to my decision. If my view that these words are incapable of a defamatory meaning is the right view, it concludes this appeal in favour of the appellants; but I will add that also in my view the plaintiff has failed to show a publication against the male defendant. With regard to the female defendant I think it may be said—although it is perhaps extending the evidence of publication rather further than has ever been done in the past in any case which I have been able to discover—that there was some evidence of publication on the part of the female defendant. There are cases which go to show that persons who themselves take no overt part in the publication of defamatory matter may nevertheless so1K. B. KING’S BENCH DIVISION. adopt and promote the reading of the defamatory matter as to constitute themselves liable for the publication. Such was the case of Hird v. Wood. (1) There some person unknown had suspended a placard between two poles on the roadway near a gate leading into certain grounds. There was no evidence as to who wrote the words on the placard or who put it up on the roadway ; but it was proved that the defendant took up his position near the placard, and remained there for a long time, sitting on a stool and smoking a pipe, and that he continually pointed at the placard with his finger, and thereby attracted to it the attention of all who passed by. The plaintiff complained of this conduct on the part of the defendant as constituting a publication by him of a defamatory statement of and concerning the plaintiff. The matter was sufficiently doubtful that, when it came before Pollock B. and a jury the learned judge held that there was no evidence of publication; but on appeal this Court, consisting of Lord Esher M.R., Lopes and Davey L.JJ., held that that constituted evidence of publication. Now the evidence of publication here of the female defendant appears to be this, that she was the secretary of this club and that under rule 12 of the Club Rules it was provided that: “No notice or placard, written or printed, shall be posted in the club premises without the consent of the secretary,” and her evidence is to this effect, that she knew that this alleged libel had been placed on the wall of the club. Her view was that she could see no harm in it. She said: “I read it. It seemed to me somebody was rather annoyed with somebody.” I think having read it, and having dominion over the walls of the club as far as the posting of notices was concerned, it could properly be said that there was some evidence that she did promote and associate herself with the continuance of the publication in the circumstances after the date when she knew that the publication had been made. But with regard to the male defendant I am unable to see that there was any evidence that he was in any way responsible for the publication. It is (x) 38 Sol. J. 234. 835 CAL 1937 BYRNE 0. DEANE. Slesser L.J.836 CAL 1937 BYRNE v Deane. Slesser L.J. KING’S BENCH DIVISION. (1987) true that this club is a proprietary club. It is true that he wasa part-lessee of the premises ; but in my view he had so arranged matters that by the contract which is contained in the rules he had provided in rule 3 that: “The affairs of the club shall be managed by a committee of seven members,” and that committee was to have power to make and amend the regulations and by-laws with the assent of the directors, That power was apparently shared by the directors, that is the two defendants, and the committee could with their assent from time to time make and alter the by-laws as seemed right to them. But taking the matter as it was at the moment when this alleged libellous publication was made, I think that the affairs of the club, including the control of any posters which might be placed on the walls, had passed if not entirely to the female defendant at any rate to her so far as the putting up of notices was concerned, and to her and the committee so far as the control of the affairs of the club is concerned, and it does not seem to me it would be proper to say that none the less in spite of this, in order to stop this publication, the directors of the club, the male and female defendants, might have altered the rules and taken the control of the club and its affairs out of the hands of the committee in order to pull down the notice. I think that is altogether a too remote and hypothetical question, leading as it might well do to a revolution in the club, resulting in the resignation of all the members, and although there is apparently a power under rule 3 (6) in the committee to make and amend the regulations and by-laws with the consent of the directors, and alter the constitution, I think that that is altogether too remote a matter to take into consideration and, therefore, as I have said, I think there is no evidence of publication against the male defendant. For these reasons, because there is no defamatory matter shown, the appeal should be allowed in my view in favour of both defendants, and, were the matter defamatory and if I am wrong on that point, the appeal should, I think, be allowed on behalf of the male defendant for want of publication by him,1K. B. KING’S BENCH DIVISION. GREENE L.J. On the issue of publication I agree that there was evidence of publication by both the defendants. I agree with my brother, Greer L.J., that no distinction is to be drawn between the two defendants for the reasons which he gave. To those reasons I may add these considerations : first of all, the suggested distinction was not taken by the present appellants in the Court below. But however that may be, the affixing of this notice to the walls of the defendants’ property, as it was not authorized by the rules of the club, was in fact a trespass, and they were entitled as proprietors to remove the trespassing article from the walls. It was a matter which fell right outside the rules of the club; it was not authorized and, therefore, it appears to me that they had ample power, notwithstanding the position and tights of the committee, to remove something from their property the presence of which could not be justified under the rules. I may also add, so far as any substance in the matter is concerned, that under rule 2 it is provided that : “‘ 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.” The effect of that would be that if the committee were sued in respect of this matter and held liable the directors would be bound to indemnify them. Therefore, quite apart from the fact that I think they were rightly sued—even if that were not the case, and the committee had been sued, the directors would have been bound to indemnify them. Now, on the substantial question of publication, publication, of course, is a question of fact, and it must depend on the circumstances in each case whether or not publication has taken place. It is said that as a general proposition where the act of the person alleged to have published a libel has not been any positive act, but has merely been the refraining from doing some act, he cannot be guilty of publication. I am quite unable to accept any such general proposition. It may very well be that in some circumstances a person, by refraining from removing or obliterating the defamatory 837 CA. 1937 BYRNE v. Deane.838 CA 1937 BYRNE, v. DEANE. Greene L.J. KING'S BENCH DIVISION. [1987] matter, is not committing any publication at all. In other circumstances he may be doing so. The test it appears to me is this: having regard to all the facts of the case is the proper inference that by not removing the defamatory matter the defendant really made himself responsible for its continued presence in the place where it had been put ? I may give as an example of a case which would fall on one side of the line: suppose somebody with a mallet and a chisel carved on the stonework of somebody’s house some- thing defamatory, and carved it very deeply so that the removal of it could only be effected by taking down the stonework and replacing it with new stonework. In a case of that kind it appears to me that it would be very difficult, if not indeed impossible, to draw the inference that the volition of the owner of the house had anything to do with the continued presence of that inscription on his stonework. The circumstance that to remove it would require very great trouble and expense would be sufficient to answer any such aspersion. On the other hand you have a case such as the present where the removal of this particular notice was a perfectly simple and easy thing to do involving no trouble whatsoever. The defendants, having the power of removing it and the right to remove it, and being able to do it without any difficulty at all, and knowing that members of the club when they came into the room would see it, I think must be taken to have elected deliberately to leave it there. The proper inference, therefore, in those circumstances it seems to me is that they were consenting parties to its continued presence on the spot where it had been put up. That being so it seems to me that they must be taken to have consented to its publication to each member who saw it. The learned judge so held, and not only do I think that there was evidence of publication on the facts of this case, but I agree with his conclusion on that matter. Now with regard to the other matter in the case, namely, the question whether these words are defamatory, the point raised is one of importance and of difficulty. The alleged1K. B. KING’S BENCH DIVISION. meaning of the words is set out in the innuendo which is pleaded. With regard to that innuendo it is to be observed that the learned judge in his judgment did not in terms, as I read it, accept that innuendo as it is drawn. Looking at his judgment I find that the meaning which he attributes to the words is this: that the plaintiff was the one who had informed the police and thereby lost for the members of the club the fun of the “ diddler” machines, and then he says again: ‘I cannot help thinking that this did aim at Mr. Byrne the accusation that he had given information to the police.” That is the only part of the innuendo which the learned judge in terms accepts. I should have thought myself, with great deference to those who think otherwise, that that is the meaning, in the circumstances, of the language used. It is to be observed that the complaint in the lampoon is the complaint that the plaintiff gave the game away, and reading that in connection with the first four lines of the Jampoon I should myself read it as meaning that he gave the game away with the result that the members were deprived of their sport. When the innuendo is looked at, this is said: “that he was guilty of underhand disloyalty to the defendants and his fellow members of the said club,” and so on. I read that myself in this sense: that he was guilty of disloyalty by reporting the matter to the police. If that be the true meaning of it, and if that be the meaning of the words, it does not appear to me that by adding the reference to disloyalty the matter is carried any further. If the allegation that he reported the matter to the police is not defama- tory, in my judgment the allegation that in reporting the matter to the police he was guilty of disloyalty cannot be defamatory. If that be right, the matter resolves itself into this: Are words capable of a defamatory meaning which say ‘of the plaintiff that he reported to the police that on the club premises of which he was a member a criminal offence was being habitually committed ? Now, it is said that the ordinary 839 CA 1937 ByRve DEANE. Greene L.J.840 CA. 1937 Byrne, DEanz. Greene LJ. KING’S BENCH DIVISION. [1987] sense of society would say of a man who had done that in the case of this particular criminal offence that he had behaved in a disloyal and underhand fashion. It is said that this particular offence is one which can be looked at with an indulgent eye, and that there is something dishonourable in setting in motion the constitutional machinery provided in this country for the suppression of crime. I myself find it embarrassing to take into consideration questions of the way in which members of clubs might regard such an action, It seems to me that no distinction can be drawn between various categories of crime. I suggested in the course of the argument the case where members of a club were habitually engaged in having cock-fights conducted on the club premises, and I asked the question whether to say of a man that he had reported that to the police would be defamatory, and the answer that I got was not to my mind a satisfactory one. But to take the matter further: supposing in the club the members were engaged in habitually defrauding guests at cards, could it be said to be defamatory if a member of the club reported that to the police ? and so on. It seems to me that if the argument is to be accepted it would involve the Court in this position: that it would have to differentiate between different kinds of crime and put in one category crimes which are of so bad a character as to call for universal reprobation even among the more easy-minded, and in another category crimes which many people think are stupid and ought never to have been made crimes at all. It seems to me that, whatever may be the view of individuals on matters of that kind, this Court cannot draw a distinction of that description. In point of fact it may very well be that the Legislature in its wisdom has made into a crime something which the public conscience of many persons in this country does not consider involves any sort of moral reprobation ; but this Court it seems to me cannot be con- cerned with considerations of that kind, and in my judgment to say of a man that he has put in motion the proper machinery for suppressing crime is a thing which cannot on the face of it be defamatory.1K. B. KING’S BENCH DIVISION. Reference was made to reports of two Scottish cases, Graham v. Roy (1) and Winn v. Quillan (2), in which the contrary appears to have been held. I myself do not find ~ very great assistance from those cases. The judgments are not reasoned judgments; they are very shortly reported ; they are cases that were dealt with at an interlocutory stage, and in one case, Winn v. Quillan (2), there was a dissent of Lord Young, and speaking for myself I do not find that those cases afford me any guidance, and in so far as anything that I have said in this judgment is inconsistent with those authorities, in my opinion they ought not to be followed for the reasons which I have given. In my opinion, therefore, the words in question are not capable of a defamatory meaning, and on that ground I consider that the appeal should be allowed. GREER L.J. I should like to add, in order to prevent any misconstruction of my judgment, that if I had come to the conclusion which Greene L.J. has come to—namely, that the only meaning of this lampoon was that the police had been informed by the plaintiff of what was going on, I should have been of the same opinion as he is that that was not defamatory. It was because the words contained something more than that, and they were not true because they were not a proper inference from the fact that the police had been informed. It is similar to a case in which there had been a statement that the police had been informed by the plaintiff and, therefore, the plaintiff was a blackguard. It would obviously be no answer in such a case as that to prove that informing the police did not make him a blackguard. It would still be defamatory of him to say that he was a black- guard, though the foundation for the statement was quite insufficient to prove that he was a blackguard. It is only because I do not want my judgment to be mis- understood that I have made these additional observations. I think that if the proper meaning and the sole meaning of these words is that the police had been told by the plaintiff (x) 13 D. 634. (@) 37 Sc. L. R. 38. 84x CA 1937 BYRNE v Deane. Greene LJ.842 CAL 1937. BYRNE 0 DEANE. KING’S BENCH DIVISION. [1937] about what had been going on, then I would agree with Greene L.J. that there was nothing defamatory in the statement. Appeal allowed. Solicitors for appellants : Gordon Gardiner, Carpenter & Co., for F. H. Carpenter & Veale, Brighton. Solicitors for respondent : Barnes & Butler, for Hillman & Sons, Seaford. RF.S, END OF VOL, I.