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Date:
Fri, 3 Nov 2006 11:15:43 +0000
From:
Allan Beever
Subject:
Defamation and compensation for enrichment
In
response to Steve's post:
It
seems to me that this misses the point that we were trying to make.
As I read Lord Devlin's judgment in Rookes, his claim is
that exemplary damages can be used in order to strip the profit
made by those in the cases we have been discussing. Though he does
imply that this is punitive and defendant focused, there is nothing
to suggest that, for instance, he thinks that courts should award
more than the profit the defendant received (though he does, quite
rightly, insist that profit need not be restricted to financial
profit). The point that has been argued by me and others is that
a better explanation for these awards is based on restitution or
disgorgement than punishment. This is not remote from the actual
legal system. It purports to be the best explanation for what the
actual legal system does. If our arguments are right, then it is
too quick to say that the restitutionary remedy doesn't exist in
England. Of course, it doesn't officially exist. But if courts are
awarding what they call exemplary damages in a way that can't be
explained well by the desire to punish but can be explained well
by the desire to realise restitution or disgorgement, then it does
exist in reality.
Of
course, it might be a mistaken account of what the legal system
does. But that is a different argument - indeed the one that others
have been engaging in.
And
I think it mistaken to suggest that the arguments that have been
advanced rely on turning reputation into a property right. The argument
is rather that there is a normative structural analogy between the
conversion of property and the deliberate tarnishing of someone's
reputation. The point of referring to property is to draw attention
to this analogy, not to suggest that reputation is property.
Best
Allan
Hedley,
Steve wrote:
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.
--
Dr Allan Beever
Reader in Law
Department of Law
50 North Bailey
Durham
DH1 3ET
United Kingdom
FAX : +44 191 334 2801
Internal Telephone: 42816
External Telephone: +44 191 334 2816
http://www.dur.ac.uk/a.d.beever/
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