Date: Thu, 2 Nov 2006 18:14:09 +0000

From: Michael Jones

Subject: Defamation and compensation for enrichment

I'm a bit confused about the apparent need to convert tort rights into property rights. Presumably, if my reputation is property that can be acquired (or used or abused) by someone else then I could sell it? For example, I might agree, for a fee, to permit a newspaper to publish false material about me, being prepared to accept the drop in my reputation as the quid pro quo for the fee. But if I am willing to make money from conniving in the peddling of falsehoods about me, would that not be a reason for my reputation to be lowered in any event (assuming that the deal with the newspaper became public), thereby removing the value in the "property" I'm purporting to sell?

If someone defames me, they damage my reputation, they don't steal it, just as if someone punches me on the nose, they damage my nose, they don't steal it. If I am punched on the nose in public (for which event the defendant has sold tickets) then that increases my distress, and would warrant an award of aggravated (i.e. compensatory) damages, in English law (and it would not take an especially inventive judge to come up with a measure of aggravated damages which reflects the defendant's profit - or, failing that an award of punitive damages would do the job). Of course, if I consented to be punched on the nose in public for a fee, then we would have boxing match - but we don't think of boxers as selling property rights in their body (either to their opponents or the paying public).

Incidentally, Cassell v Broome is the classic case of exemplary (punitive) damages being used to remove the defendant's profit from a deliberate decision to defame a plaintiff.

All the best,

Michael
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Michael A. Jones
Professor of Common Law
Liverpool Law School
University of Liverpool
Liverpool
L69 3BX

Phone: (0)151 794 2821
Fax: (0)151 794 2829
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From: Jason Neyers
Sent: Thu 02/11/2006 13:28
Subject: Re: RE: ODG: 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).

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