Date: Thu, 2 Nov 2006 11:49:52 +0000

From: Ken Oliphant

Subject: Defamation and compensation for enrichment

Hi Mårten

Welcome to the list. Good to spread the geographical diversity of list members. Looking forward to hearing more about topical issues in Swedish tort law.

On the issue you raised, English law wouldn't award restitutionary damages, but punitive damages could well be available and - as has often been remarked - their effect (perhaps even their purpose) may be to strip the wrongdoer of his ill-gotten gain. In fact, punitive damages in the English common law are available are available only in the following two situations: (1) oppressive, arbitrary or unconstitutional action by the servants of the government, and (2) where the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff (Rookes v Barnard [1964] AC 1129 at 1226, per Lord Devlin). In considering the latter category, Devlin specifically referred to damages for libel - "one man should not be allowed to sell another man's reputation for profit" - and concluded: "it is necessary to teach a wrongdoer that tort does not pay" (p. 1227).

Best wishes
Ken

--On 02 November 2006 10:28 +0100 Mårten Schultz wrote:

Hello all,

I am new to this mailing list, which seems like a great forum for exchanging ideas on these subjects. My name is Mårten, I work as a junior researcher and lecturer at the University of Stockholm, and know some of you here a little already.

Perhaps some of you could help me with a question I have regarding defamation. A much-discussed Swedish case is about to be tried in the first instance court regarding defamation. One of Sweden's largest tabloids wrote that a famous (well, he is famous in Scandinavia) actor was undergoing treatment for alcoholism, which apparently was untrue. That the requirements for compensation are fulfilled seem quite obvious (which the newspaper has also admitted). The question is how much compensation the victim should be awarded and the interesting issue in this is: Should the victim be allowed compensation for the gain (restitutionary damages) that the newspaper made from the tortious act?

The case is a case of tort liability and thus not a case of unjust enrichment (we do not really have a body of law called "unjust enrichment" in Scandinavia). So the question is thus whether the assessment of a compensation in torts can take into account the enrichment of the tortfeasor in these circumstances. Would you know if this possible in your jurisdictions? I know that in Germany (or so I'm told) there is a previous princess Caroline of Hannover judgement (that is, not the famous case from the ECHR in 2004) from the BGH (BGH 15.11.1994, BGHZ 128, 1) in which the German Supreme Court allowed the victim compensation based on the gain of the newspaper. From what I understand of Dan Dobbs hornbook, restitutionary damages are generally not allowed in the US. But Dobbs adds that this holds "at least in the absence of knowing or reckless falsehood". Does this mean that there are some indications that in situations of deliberate publication of false information of a defamatory nature, restitutionary damages may be awarded? (In the Swedish case, the newspaper would probably considered to have acted recklessly.)

Any comments would be appreciated!

----------------------
Ken Oliphant, CSET Reader in Tort, School of Law, University of Bristol,Wills Memorial Building, Queens Road, Bristol BS8 1RJ.

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