Date: Thu, 2 Nov 2006 08:28:15 -0500

From: Jason Neyers

Subject: Defamation and compensation for enrichment

Colleagues:

In response to the points made by others, let me say that I understand that the tracking between my example and conversion is not perfect. It is true that reputation cannot be bought and sold and it is not a piece of property but, in essence, the plaintiff has treated it as if it was a piece of property. They took something and used it in a way that they knew it was not to be used to generate a profit for them. In the end, they also damaged it/blackened it. In such a situation, it does not lie in the defendant's mouth to argue that I cannot get the usual property remedies since reputation is not property where by her very action she has treated it as such.

It would seem to me that if a defendant beat me in public and sold tickets to watch, I should be entitled to those profits as well. Is he not selling the use of my body? I agree that this is restitution for wrongs and not unjust enrichment proper (though I didn't think I was arguing otherwise).

Cheers,

----- Original Message -----
From: "Goldberg, John"
Date: Thursday, November 2, 2006 7:55 am
Subject: RE: ODG: Defamation and compensation for enrichment
To: Jason Neyers, KA Oliphant
Cc: Mårten Schultz

Jason:

Do the concepts of theft and conversion really work here? Or is this just metaphor? And if it is metaphor, is it apt? I find it awkward to think of reputation as a thing that can be "owned," "stolen," "cashed-in on," etc. If one owns one's reputation, doesn't this mean that, in some literal sense, one is claiming ownership other people's thoughts about oneself? This seems a disturbing thought. Isn't it cleaner to treat defamation not as akin to theft but as a straightforward personal injury tort, with damages not for the conversion of one's property, but to make amends for the wronging of the victim and the losses attending that wrong (plus perhaps 'aggravated' (punitive) damages where warranted)?

--
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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