Date: Thu, 2 Nov 2006 13:43:39 -0500

From: Jason Neyers

Subject: Defamation and compensation for enrichment

Michael:

But why would the aggravated damages be equal to the tickets sales of my nonconsensual boxing match? That choice by the judge would be totally arbitrary. For example, I could see my embarrassment growing with the number of people attending but this is independent of the price they paid. Likewise the choice of that figure for punitive damages is also arbitrary for the reasons that Allan gave.

The appeal to property-like reasoning is a way to demonstrate that the figure of the ticket sales is not arbitrary but rather an amount which is necessary to undo the violation of the rights of the nonconsensual boxer. Underlying that move is a proprietary theory of the availability of disgorgement (i.e. only when a property right or property-like right is infringed is disgorgement a proper remedy according to the dictates of justice).

Cheers,

Jones, Michael wrote:

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.

--
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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