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Date: Jason Neyers From: Thu, 2 Nov 2006 10:27:39 -0500 Subject: Defamation and compensation for enrichment
I post on behalf of Allan Beever:
Dear Mårten and others, For what it is worth: One might think of the issue this way. If the plaintiff has a right to his reputation, then there is clearly a sense in which his reputation belongs to him. Whether we want to call this ownership or not is another matter. It is also problematic, as pointed out by John, that this appears to mean that one has a right to the thoughts of others. But that is a problem with the tort in general, and is not specific to this issue. What happens in an intentional defamation case - as thought of by Lord Devlin in Rookes - is that the defendant deliberately does something to something over which the plaintiff has a right in order to make a profit. This is LIKE a deliberate case of conversion. The defendant knowingly violates the plaintiff's rights in order to make a profit. To me at least, the fact that the defendant's action possesses this normative structure does generate the conclusion that the plaintiff deserves the profit made by the defendant. I think that we can say, in these deliberate cases, that the defendant uses the plaintiff's right to make a profit (there may be better ways of expressing this idea). Again, this is LIKE conversion - where the conversion is NOT of the plaintiff's reputation but of (an aspect of) his right to reputation or, as I would prefer to put it, a "conversion" of the plaintiff's personality (in the Kantian sense, ie a "conversion" of an aspect of his legal personhood). The defendant is using something that, according to the law, belongs to the plaintiff and must not be used by the defendant. It probably doesn't help to describe the defendant's behaviour as stealing or taking, but as using (or some other term) the plaintiff's rights, because, in the cases we are imagining, the defendant deliberately acts inconsistently with that right in order to further his ends. Similarly, as Jason has argued: "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?" He isn’t stealing the body, of course. This would mean that the requirement that the defendant disgorge his profit COULD be justified in terms of the plaintiff's rights, rather than in terms of punishing the defendant. As I understand it (though I could easily be wrong on this) that is, or at least was, the predominate position on the Continent in these type of cases (though common lawyers, as always, want to redescribe these damages as punitive). (In passing, a weak point in this argument is certainly that one needs to explain what it means to use someone's right or to provide an alternative analysis (which I would want to do in terms of personality). However, the conclusion I use this argument to reach - that the plaintiff DESERVES the profit - is, I think, held by many. And that fits with compensation-restitution-disgorgement rather than with punishment – and also, incidentally, with corrective justice). Moreover, this position would explain why it is the defendant's gain that the plaintiff receives. If punishment was what we were after, then surely we would - at least often - make the defendant pay more than just surrender his gain (and perhaps this is what happens in the US), as (opportunity costs aside) disgorgement does nothing more than leave the defendant in the position that he would have been in had he not committed the wrong - ie it does not seem to punish him. Hence, from the perspective of punishment, the focus on the defendant's gain seems odd. If we are after punishment, why are we even interested in the quantum of the defendant's gain rather than in the degree of his culpability? That is, why set the quantum of damages in terms of the profit instead of in terms of how badly the defendant behaved? So, to answer Mårten's original question, I think that, though we claim to do things differently from the German case you quote, that is only because we don't understand, or at least misdescribe, what we do. Some of the reasons for this were given by Bill. In my view, for what it is worth, the best explanation for what we do is the one given by the German court as you explain it for what it does. This is, of course, what Jason claimed and also what Ken suggested might be the case.
All
the best -- Dr
Allan Beever <<<< Previous Message ~ Index ~ Next Message >>>>>
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