Reputation, Celebrity and Defamation Law

David Rolph

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317065760
• Edition: 1
• Topic: Derecho
• Subtopic: Jurisprudencia

Taking Robert Post's seminal article 'The Social Foundations of Reputation and the Constitution' as a starting point, this volume examines how the concept of reputation changes to reflect social, political, economic, cultural and technological developments. It suggests that the value of a good reputation is not immutable and analyzes the history and doctrines of defamation law in the US and the UK. A selection of Australian case studies illustrates different concepts of defamation law and offers insights into their specific nature. Drawing on approaches to celebrity in media and cultural studies, the author conceptualizes reputation as a media construct and explains how reputation as celebrity is of great contemporary relevance at this point in the history of defamation law.

PART I

Chapter 1
Post on Reputation

Introduction

Despite the fact that it is the central interest directly protected by defamation law, there has been insufficient detailed academic consideration of the concept of reputation in defamation law. The most significant and detailed piece of legal scholarship analysing the concept of reputation remains Robert C. Post’s seminal article, ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ (Post 1986). In his article, Post presents a taxonomy of reputation – reputation as property; reputation as honour; and reputation as dignity (Post 1986, 693). Post’s approach is avowedly sociological. He presents these concepts of reputation as ideal types – analytically distinct but actually co-existing or overlapping (Post 1986, 693). However, Post acknowledges that it is possible to analyse reputation from other critical or theoretical perspectives. He does not suggest that a sociological approach is the only possible one. Indeed, Post specifically mentions that an historical approach to reputation might yield further insights – a task he himself does not undertake (Post 1986, 693). Nor does he suggest that his conceptions of reputation are the only possible ones (Post 1986, 720). The categories of reputation are not closed.

Any analysis of the concept of reputation in defamation needs to engage with Post’s schema of reputational interests. This book adopts, and ultimately adapts, Post’s framework and seeks to apply it to Australian defamation law in particular. In order to establish the parameters of the subsequent analysis, this chapter outlines Post’s framework and provides a critique of it.

Reputation as Property

Post on Reputation as Property

The first concept of reputation Post introduces is reputation as property. According to Post, this conception of reputation is the ‘most easily available to contemporary observers’, one with which they are ‘intimately comfortable’ (Post 1986, 693, 726). It is, he asserts, the least problematic of the three concepts of reputation (Post 1986, 727). For Post, reputation as property means ‘reputation in the marketplace’ and is thus akin to goodwill (Post 1986, 693). He gives as examples of reputation as property ‘the merchant who works hard to become known as creditworthy’ and ‘the carpenter who strives to achieve a name for quality workmanship’ (Post 1986, 693). Indeed, in the historical development of the law of defamation, this type of reputation – professional reputation – received early recognition and protection (see for example Slaughter 1992, 358).

Post then quotes at length from nineteenth-century jurist, Thomas Starkie, on reputation:

Reputation itself, considered as the object of injury, owes its being and importance chiefly to the various artificial relations which are created as society advances.

The numerous gradations of rank and authority, the honours and distinctions extended to the exertion of talent in the learned professions, the emoluments acquired by mechanical skill and ingenuity under the numerous subdivisions of labour, the increase of commerce, and particularly the substitution of symbols for property in commercial intercourse – all, in different degrees, connect themselves with credit and character, affixing to them a value, not merely ideal, but capable of pecuniary admeasurement, and consequently recommending them as the proper objects of legal protection. (Post 1986, 694)

Adopting a Lockean view of property, Post states that reputation as property acknowledges that an individual may form a reputation for himself or herself through labour – through ‘the exertion of talent’ or ‘mechanical skill and ingenuity’ (Slaughter 1992, 358; Post 1986, 694). Such a professional reputation acquired through labour is therefore a form of property. Consequently, to defame a professional person is to destroy a valuable right and interest, namely the product of that person’s skill, labour and effort (Post 1986, 694). The damage to reputation, like all other forms of property loss, is therefore ‘capable of pecuniary admeasurement’ (Post 1986, 694).

Post does not limit this analysis of reputation as property to instances of professional reputation but extends it to instances of purely personal or private reputation. He argues that personal or private reputations can be equally characterised as property because they are earned. A good reputation can be created and cultivated through exertions in social relations (Post 1986, 694–5).

Acknowledging that reputation is inherently social and arguing that, as such, each concept of reputation is premised upon an image of society, Post then seeks to identify the image of society that informs the concept of reputation as property (Post 1986, 692). Post argues that the concept of reputation as property is premised upon an image or a notion of a market society, that individuals are connected to each other through the mechanism of the marketplace (Post 1986, 695). He then identifies three features of reputation as property in a market society.

Firstly, Post argues that the concept of reputation as property acknowledges that a reputation is contingent in the sense that, notwithstanding the current reputation of an individual, that individual possesses the ability to create a new reputation into the future (Post 1986, 695–6). This means that an individual’s personal identity is ‘distinct from and anterior to’ his or her social identity (Post 1986, 696). As such, reputation as property suggests that ‘[i]ndividuals are not constituted by the social regard with which they are apprehended by others’ (Post 1986, 696).

Secondly, Post states that reputation as property acknowledges that the value of an individual’s reputation will fluctuate with the market and, importantly, the individual’s participation in the market. Again, reputation as property presupposes the contingency of an individual’s reputation but additionally suggests that such movements are not ‘a matter of either honor or dishonor’ (Post 1986, 696).

Thirdly, Post argues that reputation as property assumes that all persons are participants in the market; that all participants are equal in that they are all subject to the market; that no person enjoys a right to reputation outside what Post styles ‘the evaluative processes of the market’; and that there are no barriers to entry and participation in the market for reputations (Post 1986, 696).

Post ultimately contends that the concept of reputation as property is firmly entrenched in defamation law (Post 1986, 696–7). According to Post, certain forms of reputation protected by defamation law, notably corporate reputation, are only explicable on the basis of an underlying conception of reputation as property (Post 1986, 696).

The Limitations of the Concept of Reputation as Property

Post himself states there are several limitations to the concept of reputation as property that should be noted. He observes that the concept of reputation as property does not explain key doctrines of defamation law, such as the requirement that a publication be deemed defamatory before liability will be established and, more importantly, the presumption of damage to reputation in the overwhelming majority of defamation cases.

There are further criticisms that may be made of the concept of reputation as property. Firstly, one of the common characteristics or indicia of property is alienability. Property can be alienated, transferred, disposed of, traded or sold. Yet, whilst a natural person can commodify part of his or her reputation and trade or sell it, he or she cannot wholly alienate it (see Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349–51 per Hayne J). Reputation inheres in the person of the plaintiff. Post grapples with this problem, arguing that reputation is alienable, and therefore a form of property, because corporations can buy and sell their goodwill. Rather than addressing the impossibility of extending this to personal reputations, Post instead emphasises the features of reputation as the result of individual exertions and the assessment of the value of a reputation by the marketplace (Post 1986, 695). An earlier theorist of the concept of reputation, George Spencer Bower, acknowledged that the reputation of individuals was not alienable and that this might detract from its characterisation as property. Nevertheless, Spencer Bower advocated an understanding of reputation as property, albeit of ‘a somewhat peculiar description’ (Spencer Bower 1990, 240–41). Spencer Bower is perhaps more forthright about the limitation of his analysis but ultimately reaches the same, somewhat unsatisfactory conclusion.

A related problem with the concept of reputation as property is that there is no real marketplace for reputations. The value of a plaintiff’s reputation is not determined in an open marketplace; it is determined in a court. Such a marketplace as exists for reputations is closed, controlled and artificial; it exists solely in the verdicts of juries and, more recently, judges. Yet, even describing this as a ‘marketplace’ is difficult because judges eschew any real and necessary relationship between awards of damages in defamation cases, let alone between awards of damages in defamation and other types of cases (see Crampton v Nugawela (1996) 41 NSWLR 176 at 191 per Mahoney ACJ; Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 at 349–51 per Hayne J. See also George 2006, 75).

Ultimately, the major limitation of the concept of reputation as property, at least in its application to Australian defamation law, is that Australian judges have consistently rejected the treatment of reputation as property. Whilst there is a line of authority in English defamation cases asserting that reputation is a form of property, or at least a quasi-proprietary right, the prevailing view in Australian defamation jurisprudence is against such a characterisation (see also Gibbons 1996, 594).

Indeed, the English authorities providing explicit support for the notion of reputation as property all emanate from the nineteenth century, indicating perhaps more the judicial temper of the time, rather than the nature of reputation properly understood. For example, in M’Pherson v Daniels (1829) 10 B & C 263; (1829) 109 ER 448, Park J asked rhetorically (at 276; 453), ‘every injury to property is the subject of a civil action. Upon what principle can it be said that a wrong done to the good name and reputation of another is not equally so?’

Likewise, in Dixon v Holden (1869) 7 LR Eq 488, in an equally rhetorical vein, Sir Richard Malins V.-C. asked (at 492):

What is property? One man has property in lands, another in goods, another in a business, another in skill, another in reputation; and whatever may have the effect of destroying property in any one of these things (even in a man’s good name) is, in my opinion, destroying property of a most valuable description.

Indeed, the Vice-Chancellor went further, opining that, for a merchant, ‘his reputation, which is his property’ is ‘if possible, more valuable than other property’.

The contemporary Australian authorities stand in marked contrast to their nineteenth-century English counterparts. For instance, in Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118, Windeyer J observed (at 150):

[a] man’s reputation, his good name, the estimation in which he is held in the opinion of others, is not a possession of his as a chattel is. Damage to it cannot be measured as harm to a tangible thing is measured. Apart from special damages strictly so called and damages for a loss of clients or customers, money and reputation are not commensurables.

To similar effect, Brennan J stated (at 70) in Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 that, ‘[a]lthough damages are awarded to vindicate the plaintiff’s reputation, damages are not awarded as compensation for the loss in value of a plaintiff’s reputation as though that reputation were itself a tangible asset or a physical attribute which, once damaged, is worth less than it was before.’

Most recently, Hayne J in Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327 stated (at 349) that ‘a plaintiff’s reputation is not a commodity having a market value.’ (See also George 2006, 74–5.)

Equally, some academic commentators have suggested that reputation as property is not as useful an understanding of reputation as reputation as honour. The eminent American jurist, Roscoe Pound, argued that it is possible to overstate the extent to which individuals acquire a reputation as an asset through interaction with others, suggesting instead that reputation as honour is the preferable view (Pound 1915, 447). According to the sociologist, Robert N. Bellah, ‘reputation is not a property or possession of individuals – it is a relation between persons’ (Bellah 1986, 743). Dealing with the issue of an individual’s professional reputation, Bellah suggests that such a reputation may seem like an asset of its owner, but it is preferable to conceive of it as ‘a public good, not merely a private possession’ (Bellah 1986, 744, 745). More recently, David A. Anderson stated that ‘[d]efamation is a dignitary tort; attempting to reduce it to a remedy for economic loss would be historically unfaithful, doctrinally radical, and destructive of important cultural values’ (Anderson 2006, 1047).

However, Post is clearly correct to observe that certain aspects of defamation law are only explicable on the basis that the common law provides protection for reputation as property. The extension of defamation law to protect corporate reputation is the most obvious example of this, as Post himself contends. Nevertheless, it is clear that reputation as property can only provide a partial explanation of reputation in defamation law and, moreover, Post’s assertion that reputation as property is the most readily apparent understanding of reputation is not accepted as a concept informing Australian defamation law.

Reputation as Honour

Post on Reputation as Honour

The second concept of reputation Post introduces is reputation as honour. Post commences his analysis of the concept of reputation as honour by identifying the venerable tradition that treats reputation as transcending monetary value (Post 1986, 699). As examples of this tradition, Post cites the Old Testament and Shakespeare. Post concludes that the notion of reputation underpinning this tradition is inconsistent with the notion of reputation as property (Post 1986, 699).

Post defines honour as ‘a form of reputation in which an individual personally identifies with the normative characteristics of a particular social role and in return personally receives from others the regard and estimation that society accords to that role’ (Post 1986, 699–700).

Unlike reputation as property, reputation as honour cannot be earned but is rather ascribed. It is not a product of exertion but is rather a right that attaches to a social role (Post 1986, 700). According to Post, an individual is ascribed to or identifies with a social role; certain attributes are ascribed to that social role; and the individual ascribed to or identifying with that social role is then expected to embody and exemplify those attributes (Post 1986, 700). Therefore, reputation as honour connotes a reciprocity of responsibilities between an individual and his or her society.

Post then defines reputation as honour through a detailed contrast with reputation as property. For instance, whilst reputation as property is premised upon the equality of all individuals before the marketplace, reputation as honour is premised upon inequality. Because individuals occupy different roles and their honour is a reflection of their respective roles, individuals (and, by extension, their reputations) are inherently unequal (Post 1986, 700).

In addition, whilst the value of reputation as property fluctuates according to individual exertions and market conditions, the value of reputation as honour is fixed (Post 1986, 700). This is because honour is linked to social roles, the order of which and the value attending each is preordained. Unlike reputation as property, reputation as honour ‘cannot be converted into a medium of exchange’ – there can be no marketplace for reputations; reputation is inalienable and unquantifiable. According to Post, it is possible to lose but impossible to gain honour (Post 1986, 700, 701).

Finally, whilst reputation as property presupposes that an individual’s personal identity is distinct from and anterior to his or her social identity, reputation as honour is premised upon the complete identification of an individual’s personal and social identities. The reputation of the plaintiff is based on and consumes the whole of the plaintiff’s life. Thus, such a concept of reputation views a defamatory publication as depriving a plaintiff not merely of an asset but more seriously of the loss of self (Post 1986, 701).

Again, acknowledging that reputation is inherently social, Post then considers what image of society informs the concept of reputation as honour. According to Post, the image of society underpinning the concept of reputation as honour is one in which social roles are ‘pervasive and well-established’ and, more importantly, provide the ‘normative standards of personal conduct’ (Post 1986, 701). Post describes this image of society as ‘deference society’ (Post 1986, 702).

Post then contrasts reputation’s place in a market society and a deference society. For instance, in a market society, reputation as property is a private possession. The state’s interest in protecting reputation is therefore the same rationale for the protection of all forms of private property (Post 1986, 702). By contrast, in a deference society, reputation as honour is premised upon agreed understandings about social roles. In such a society, reputation becomes a public good and the state’s interest in protecting reputation becomes an interest in maintaining the social structure (Post 1986, 702). According to Post, defamation law in a deference society has the dual functi...