Date: Fri, 3 Nov 2006 10:49:54 +0000

From: Steve Hedley

Subject: Defamation and compensation for enrichment

What may (or may not) also be confusing Mårten is the variety of different types of answers he has been getting.

Some have actually stated what the law is in their jurisdiction. Ken's first post gave the right answer for English law, and others have filled in some gaps. Pretty clearly, the restitutionary remedy Mårten asks about is not available in England, and no-one else has given a strong reason for supposing that it is available in any other common law country. As Jason has pointed out, while exemplary damages may sometimes be available to reflect a profit made, that's very different from saying that the measure of damages would be the profit (which is clearly not the law).

Others have speculated on whether a remedy for the restitutionary remedy might be justifiable in the future. This branch of the discussion has relied heavily on "corrective justice" (or whatever we want to call it). But such discussions are usually rather remote from any actual legal system, and while that doesn't in itself invalidate them, here it makes them rather problematical:-

1/ Analogies between reputation and property have been relied on. But any actually existing legal system is already going to have pretty firm ideas of what is and isn't property, and arguments which treat this as tabula rasa won't have much traction. Of course reputation can be seen in proprietary terms (most rights can, at a pinch), but why would we want to?

2/ Some say that a restitutionary remedy here would be just. But that question depends entirely on what else the actual legal system in question can do. Take libel. If the choice is between a restitutionary remedy and no remedy at all, then it's easy to say that the restitutionary remedy is just - people who are libelled should have a remedy of some sort. If however the legal system already makes provision for damages, including exemplary damages, it is much less obvious that a restitutionary remedy is called for. The argument whether a restitutionary remedy should be available, or whether the plaintiff deserves the money, cannot be had in the abstract, without asking what the actual legal system would do if that remedy were refused.

Steve Hedley
Faculty of Law, University College Cork

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