-16the defamatory matter the defendant really made himself responsible for its continued
presence in the place where it had been put?”36
39.
His Lordship gave as an example of a situation where no such
inference could be drawn the case where:
“...somebody with a mallet and a chisel carved on the stonework of somebody's house
something 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.”
40.
Applying that approach to the case at hand, Greene LJ considered it
proper to infer that the defendants had consented to the continued presence of
the statement on the notice board and so were potentially liable as publishers:
“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.”37
41.
The second case cited in this line of authority is the decision of the
Court of Appeal of California in Isabelle Hellar v Joe Bianco.38 This involved
a defamatory graffito on the wall of the men’s lavatory in the defendant’s tavern
which imputed that the plaintiff was “an unchaste woman who indulged in illicit
amatory ventures”, supplying her telephone number.
When alerted to its
existence, her husband telephoned the bartender and demanded that he remove
it within 30 minutes. The bartender said he was too busy to do so but would get
round to it in due course. The plaintiff sued the owners of the tavern for libel
but she was non-suited at first instance. The Court of Appeal reversed the
36
At 837-838.
37
At 838.
38
(1952) 244 P 2d 757.
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