Date: Thu, 2 Nov 2006 21:35:15 +0200

From: Daniel Friedmann

Subject: Defamation and compensation for enrichment

Michael,

I tried to explain this point in (1980) 80 Columbia L. Rev. 504, 511 in discussing the issue of profits improperly derived from "nonsalable" interest. The plaintiff may not be willing to "sell" his reputation. But if a third party sells a libel about the plaintiff he actually trades with the plaintiff's good name and there is no reason why he should not be accountable. The example you give about someone who punches on the nose is different. It deals with pure damage. A closer example is that of the defendant cutting the plaintiff's nose or any other part of his body and sells it (eg for medical or research purposes). Although this is a nonsalable "property" the defendant should be liable in restitution.

Best
Dan

----- Original Message -----
From: Jones, Michael
To: Jason Neyers
Sent: Thursday, November 02, 2006 8:14 PM
Subject: RE: RE: ODG: 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.

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