Date: Thu, 2 Nov 2006 12:51:32 +0000

From: Ken Oliphant

Subject: Defamation and compensation for enrichment

Jason,

You make this sound like a case of identity theft, which it's not. The defendant doesn't steal the victim's reputation; he blackens it.

I think your analysis might have more purchase in the case of, say, the use of personal information or images for commercial gain (see the latest instalment of Douglas v Hello!).

Ken

--On 02 November 2006 07:25 -0500 Jason Neyers wrote:

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.

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

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