Date: Thu, 2 Nov 2006 12:47:40 +0000

From: Andrew Dickinson

Subject: Defamation and compensation for enrichment

It seems to me artificial to say that the defendant has stolen the claimant's reputation, as if it were a piece of intangible property. The defendant has not taken something and used it to generate profit, rather he has generated profit from those willing to pay to see the defendant's reputation injured by the claimant's words. More a beating in public than fencing stolen property. Unjust enrichment by wrongdoing, not unjust enrichment by subtraction.

Andrew

-----Original Message-----
From: Jason Neyers
Sent: 02 November 2006 12:26
To: KA Oliphant
Cc: Mårten Schultz
Subject: Re: ODG: Defamation and compensation for enrichment

Dear Mårten:

At the level of principle, I would think that the plaintiff should get gain-based damages as outlined in Rookes, but the reason for it is not punishment. Rather it is due to the fact that the defendant has stolen the plaintiff's reputation and converted it into cash. As between the two, the plaintiff has the entitlement to this gain (it was his reputation) and therefore he is entitled to the cash, as a matter of compensation not punishment. There is an interesting article that deals with these issues called "Restitutionary Damages as Corrective Justice by Weinrib (in Theoretical Inquiries in Law journal) and a book by Edelman called Gain-based Damages.

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