Byrne v Dean [1937] 1 KB 818

Key Point

When it comes to defamation claims, the question for the court is whether a right-thinking person would construe the words in their ordinary meaning as lowering the reputation of the claimant

Facts

  • Someone had reported a gambling related crime in a club to the police, who then confiscated all illegal machines on the premises
  • An anonymous notice then appeared in the club, accusing the claimant of being disloyal and working with the police
  • The claimant proceeded to launch a defamation claim against the proprietors and the secretary of the club (whose permission was necessary to put up notices in the club)
  • The judge held that the notice was defamatory in favour of the claimants, the defendants appealed

Held (Court of Appeal)

Appeal allowed; the allegation of being an informant to law enforcement could not be defamatory.

Greene LJ and Slesser LJ (Majority)

Publication

  • Greene LJ disagreed with the general position, that where the statement has been published as a result of the defendants inaction, he cannot be guilty of publication: [837]
  • Greene LJ proposed the test to be whether it could be inferred that the defendant made himself responsible for the continued presence of the defamatory matter by not removing it: [838]
  • Greene LJ found that the defendants were responsible for publication: ‘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… I think must be taken to have… consented to its publication to each member who saw it.’: [838]

Defamatory meaning

  • Greene LJ found the meaning of the notice to be that the claimant was ‘guilty of disloyalty by reporting the matter to the police’: [839]
  • Slesser LJ established the test for defamatory meaning to be whether the statement in question was capable of lowering the estimation of the claimant in the eyes of right thinking people generally: [833]
  • Slesser LJ  then found that allegations of someone having reported unlawful acts to the authorities and ‘putting the law in motion’  (thus be disloyal to a small group of wrongdoers) could not ‘said to be defamatory of him in the minds of the general public’: [833]

Greer LJ (Dissenting)

  • He agreed with the majority on the question of publication, but dissented on the defamatory meaning
  • A distinction should be made between the interpretation that the claimant had worked with the police and the interpretation that he had been disloyal to his fellow club members: [841]
  • The first interpretation (working with law enforcement) would indeed be not defamatory, whereas the second (general disloyalty) would be, as it would lower the general societal opinion of the claimant: [831]

Commentary

  • The majority only considered the potential opinions of general society, and not of the claimants’ closer social group in the club. This implies that the test is not actually how people respond to the statement in question, but rather, how they ought to respond as ‘right thinking people’. It disregards the actual impact a statement may have on the claimants daily life, as long as general society will still accept him.
  • ‘‘[T]he English test is arguably based upon the assumption of a consensus of moral opinion in society which, if it ever existed, has now passed away’’ (Tort Law: Text and Materials By Mark Lunney, Donal Nolan, Ken Oliphant, p.733)