-18the defendant's property, he must establish more than mere knowledge on the part of
the defendant of the existence of that statement and the opportunity to remove it.
According to the authorities, the plaintiff must establish that the defendant consented
to, or approved of, or adopted, or promoted, or in some way ratified, the continued
presence of that statement on his property so that persons other than the plaintiff may
continue to read it - in other words, the plaintiff must establish in one way or another
an acceptance by the defendant of a responsibility for the continued publication of that
statement.”42
43.
Hunt J therefore explained the Byrne v Deane rule as one which
resulted in the occupier of the premises being treated as a publisher of the libel
only if the facts, including a failure to remove the offending statements within a
reasonable time of becoming aware of their existence, justified the inference
that the occupier had consented to or adopted the defamatory statement. His
Honour therefore held that the pleaded case, if duly proved, was:
“... capable of amounting to the publication by the second defendant of those posters
provided that the jury also draws the inference from such conduct that the second
defendant had in fact accepted a responsibility for the continued publication of those
posters.”43
44.
The Byrne v Deane line of cases may therefore be viewed as
authority for the following propositions:
(a) Where a third person writes or affixes a statement defamatory of the
plaintiff on the occupier’s property without the occupier’s
knowledge, the occupier is not treated as a publisher of that
statement prior to his becoming aware of it.
(b) Once the occupier discovers its existence, he may be treated as a
publisher but only if, having the power to do so, he does not remove
or obliterate the offending statement in circumstances which justify
inferring as a matter of fact that by his inaction he has consented to
or ratified its continued publication.
42
At 69,193.
43
At 69,195.
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