Date: Thu, 2 Nov 2006 13:55:05 +0000

From: John Murphy

Subject: Ken's response to Jason

Jason,

I'm with Ken on this business of theft of the plaintiff's identity. But I'd add this.

1. The intention (absolutely crucial in theft law) is, as Ken says, to blacken the plaintiff's name. The editor's motive, by contrast, is to make money out of doing so.

2. In traditional theft law, the intention must be to DEPRIVE PERMANENTLY the victim of something. I dare say a tabloid editor couldn't care a hoot (were it not for the damages he may be required to pay in a defamation action) if the victim's reputation is restored several months down the line.

The centrality of the intention to permanently deprive in theft law is reinforced by a highly technical exception where borrowing can be theft: Theft Act, s 6. (I'm assuming the law hasn't changed on this since I studied it 20 years ago). In that exceptional case, the "intended borrowing" was still deemed to be an intent to deprive permanently. But as I say, in the case of the editor, I think the most you could say is that he was indifferent as to whether the victim's reputation was later restored GIVEN that his sole motive was to make money out of the story.

Of course, if you believe that tort law is exclusively about corrective justice, then you will naturally want to adopt the Weinrib approach. But it is just as important that the law fits the facts as it is that the theory fits the case law.

John Murphy

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