Date: Thu, 2 Nov 2006 20:15:14 +0000

From: Andrew Dickinson

Subject: Defamation and compensation for enrichment

Daniel's reasoning about trading in the plaintiff's good name illustrates the artificiality of the property analogy, which is unnecessary in any event for the law to achieve a just response (whatever the label it may give to the damages awarded). The libel defendant does not "trade with" the claimant's good name (cf. a case such as Irvine v. Talksport, where the defendant promoted its product using the claimant's image and was held liable for passing off). Instead, he trades on the spectacle of the destruction of the claimant's good name. Thus, the analogy with (for example) unlawful removal and sale of a kidney is not a compelling one.

Andrew

-----Original Message-----
From: Daniel Friedmann
Sent: 02 November 2006 19:35
To: Jones, Michael; Jason Neyers
Subject: Re: RE: ODG: 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.

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