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Date:
Thu, 2 Nov 2006 07:25:39 -0500
From:
Jason Neyers
Subject:
Defamation and compensation for enrichment
Dear
Mårten:
At
the level of principle, I would think that the plaintiff should
get gain-based damages as outlined in Rookes, but the reason
for it is not punishment. Rather it is due to the fact that the
defendant has stolen the plaintiff's reputation and converted it
into cash. As between the two, the plaintiff has the entitlement
to this gain (it was his reputation) and therefore he is entitled
to the cash, as a matter of compensation not punishment. There is
an interesting article that deals with these issues called "Restitutionary
Damages as Corrective Justice by Weinrib (in Theoretical Inquiries
in Law journal) and a book by Edelman called Gain-based
Damages.
-----
Original Message -----
From: KA Oliphant
Date: Thursday, November 2, 2006 6:51 am
Subject: Re: ODG: Defamation and compensation for enrichment
To: Mårten Schultz
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).
--
Jason Neyers
January Term Director
Associate Professor of Law
Faculty of Law
University of Western Ontario
N6A 3K7
(519) 661-2111 x. 88435
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