Tort Law

Tolley v. J.S. Fry & Sons Ltd.

[1931] AC 333

Citation: [1931] AC 333
Court: House of Lords
Date: 1930 (reported 1931)
Bench: Lords Buckmaster, Atkin, Russell of Killowen, Macmillan and Thankerton

Facts

• Cyril Tolley was a prominent amateur golfer.
• Amateur status was highly valued in competitive golf.
• Accepting payment for commercial endorsement could damage an amateur golfer’s reputation and eligibility.
• J.S. Fry & Sons manufactured chocolate products.
• Without Tolley’s permission, the company produced an advertisement containing a caricature of him playing golf.
• The image showed a packet or bar of Fry’s chocolate protruding from his pocket.
• A caddie was also depicted carrying or referring to the company’s chocolate.
• The advertisement used Tolley’s public identity to promote the product.
• Tolley alleged that the advertisement falsely implied he had agreed to endorse the company in return for payment or commercial benefit.
• The advertisement did not expressly state that he had been paid.
• Its surface tone could even be seen as complimentary.
• Tolley sued in libel, relying upon innuendo concerning amateur sporting ethics.

• Whether the advertisement was capable of implying that Tolley had compromised his amateur status.
• Whether a complimentary commercial use could nevertheless be defamatory.
• Whether the defendant’s lack of intention to injure reputation mattered.

• A statement may be defamatory where it conveys a false implication damaging the claimant’s profession, status or social standing.
• Defamation may arise through:
o words;
o images;
o caricatures; or
o a combination of visual and verbal material.
• The publication must be read in context and in light of relevant background facts known to readers.
• A statement need not be abusive or insulting.
• Even apparent praise may be defamatory where it falsely suggests conduct regarded as dishonourable by the claimant’s community.
• Intention to defame is not essential.

• Readers familiar with amateur golf would understand that commercial endorsement could violate accepted standards.
• Showing Tolley using and promoting the chocolate was capable of implying a commercial arrangement.
• The implication could cause fellow golfers and sporting authorities to believe that he had converted his amateur reputation into financial gain.
• That belief could:
o reduce respect for him;
o threaten his amateur standing;
o expose him to disciplinary consequences; and
o damage his sporting relationships.
• The company’s purpose was advertising rather than hostility.
• However, liability depended upon the meaning conveyed to readers, not the advertiser’s private intention.
• The fact that Tolley was shown as famous or admirable did not remove the damaging implication.
• A statement can praise athletic ability while simultaneously suggesting unethical commercial conduct.
• The question was properly left to the jury because reasonable readers could understand the advertisement in the defamatory sense.

• The House of Lords held that the advertisement was capable of being defamatory.
• The jury was entitled to find that it implied Tolley had accepted payment and compromised his amateur status.
• Fry & Sons was liable even though the advertisement was intended to promote both the product and Tolley’s fame.