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Defamation law in a changing society: the case of Youssoupoff v Metro-Goldwyn Mayer

Published online by Cambridge University Press:  02 January 2018

Leslie Kim Treiger-Bar-Am
Leslie Kim Treiger-Bar-Am*
Affiliation:
Tel Aviv University Faculty of Law
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Abstract

Defamation law offers a unique view of society and the changes it undergoes. When a claim of reputational injury is made, the case exposes the prejudices alive in the particular society at hand; and when the law deems a claim actionable, it recognises and, at some level, lends credence to the prejudices held. The case of Youssoupoff v Metro-Goldwyn Mayer is a case in point. The claim by Princess Youssoupoff in 1934 that an imputation of rape or seduction is libelous reveals underlying currents in English society at the time as to class, nation and gender. The judicial recognition of the claim, and the legal and extra- legal reactions to the claim at the time and since, further raise for examination the relationship between law and morality: to be recognised as defamatory, must an allegation impute immorality to the plaintiff? Should the law of defamation recognise societal prejudices that are real, even if deemed by lawmakers and the judiciary invalid? Is it the function of the law to mirror the society in which it is produced or to carry it forward?

Type
Research Article
Information
Legal Studies , Volume 20 , Issue 2 , June 2000 , pp. 291 - 319
Copyright
Copyright © Society of Legal Scholars 2000

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References

1. (1934) 50 TLR 581, CA.

2. Daily Herald, 6 March, 6c.

3. 50 TLR 581 at 588.

4. Hereinafter ‘the Youssoupoff standard’.

5. In libel or in slander, see below, text at nn 27–29.

6. She was described by her counsel as living ‘practically penniless’ in Paris. The Times, 28 February, 4c.

7. The Princess's mother and uncle Tsar Nicholas II were first cousins of King George V of England. T Berkman The Lady and the Law (Boston: Little, Brown, 1976) p 4 (biography of New York counsel for Princess). During the litigation the princess stayed at Windsor Castle. bid, p 152. The Countess of Asquith and Oxford and Lady Maugham listened to the summing up of the trial from the judge's private gallery. Daily Telegraph, 6 March, 15g.

8. The film was broadcast in two theatres in London.

9. The Times, 13 July, 4a. The American company made the film in the US, released there under the title Rasputin and the Empress. Ibid. The Princess tiled an action for $2,000,000 in the US. Berkman, above n 7, p 159. She filed numerous additional petitions across Europe for removal of the film and threatened actions against 288 picture houses in England. The Times, 28 February, 4d.

10. Berkman, above n 7, p 151.

11. The Times, 1 March, 4b. In response to a defence argument, the claim was later presented as that the film portrayed her as having been seduced or raped by Rasputin, see further below, text at nn 68ff.

12. The sum is equal to over Elm in today's money. HM McGregor McGregor on Damages (London: Sweet and Maxwell, 16th edn, 1997) para 1889, n 8.

13. The Times, 11 August, 10e.

14. The New York Times, 11 August, 16b.

15. 50 TLR 581 at 587.

16. Sim v Stretch (1936) TLR 669 at 671, per Atkin LJ.

17. Parmiter v Coupland (1840) 6 M&W 105 at 108, per Parke B.

18. 50 TLR 581 at 584.

19. (1882) 8 QBD 491 at 503.

20. The distinction is significant in relation to whether the action requires proof of special damage, see below, text at n 68.

21. With the Courts and Legal Services Act 1990, however, the Court of Appeal is now empowered to substitute its own figure of damages. Analysis of these aspects of Youssoupoff is beyond the scope of this article.

22. This aspect of the ruling was not in fact novel. In Hulton v Jones (1910) AC 20 a newspaper published a fictional article about a character named ‘Artemus Jones’, and a person with that name filed a successful suit against the paper. The House of Lords held that it is no defence that the defendant did not intend to defame the plaintiff, if reasonable people would think the language to be defamatory of the plaintiff.

23. 6 March, 15c. The Times also wrote of the importance of the case in affirming the public policy of protecting character, see below, text at n 50.

24. 6 March, 14b.

25. 9 March, 359. This expression of support for sanctioning Hollywood coheres with the anti-American emotions of the time, see below, text at nn 46-58.

26. 6 March, 18d.

27. Chattell v ‘Daily Mail’ Publishing Co Ltd (1901) 18 TLR 165. See also A T Hoolahan, A W H Caldecott and P Moloney ‘Libel and Slander’ in 28 Halsbury's Laws (London: Butterworths, 4th edn, 1979) p 56, n I, citing Roberts v Roberts (1864) 5 B & S 384 at 390 per Blackburn J. This may not be the case today with respect to libel; the statement of the proposition that a woman's chastity is ‘actionable per se’ is absent in 28 Halsbury's Lnws (4th edn reissue). See further below, text at nn 134–135.

28. 54 and 55 Vict c 51 (1891).

29. Ibid. The 1891 Act provides for damages but no costs, unless the judge certifies there were reasonable grounds for bringing the action.

30. But see J G Peristiany ‘Introduction’ in J G Peristiany (ed) Honour and Shame. The Values of Mediterranean Society (Chicago: University of Chicago Press, 1965) pp 10, 17, n 4 (honour a temporal ideal, as distinguished from spiritual ideals), on which view loss of honour without financial harm would be recognised as temporal damage Until 1750, words imputing acts of immorality were not actionable altogether in the common law courts, as ecclesiastical courts exercised jurisdiction over all forms of immorality. Brownsword v Edwards (1751) 2 Ves Sen 243. Ecclesiastical courts were deprived of their jurisdiction in defamation cases in 1855: 18 and 19 Vict c41. See P F Carter-Ruck, R Walker and H N A Starte Carter-Ruck on Libel and Slander (London: Butterworths, 4th edn, 1992) p 83.

31. See eg Wilby v Elston (1849) 18 LJCP 320.

32. Parl Debs (series 3) vol CCCLIV (1891 29 June) 1704, n 7.

33. Ibid, p 1707.

34. The Times, 18 July, 4a.

35. 50 TLR at 586. See also Scrutton LJ at 585 (‘high position’ of the plaintiff), and Slesser LJ at 588 (‘position of the parties’).

36. J Weeks Sex, Politics and Society: the regulation of sexuality since 1800 (London: Longman, 2nd edn, 1989) p 214.

37. McGregor on Damages, above n 12, para 1924. See also 28 Halsbury's Laws (4th edn reissue), p 248; P Milmo and W V H Rogers (eds) Gatley on Libel and Slander (London: Sweet and Maxwell, 9th edn, 1998) para 9.2. These sources offer no case citations.

38. But see Gatley, above n 37, para 2.2 (a public figure may be seen to tolerate more criticism than others).

39. D Price Defamation: Law, Practice and Procedure (London: Sweet and Maxwell, 1997) para 2.18. Could an analogy be made to jury awards in personal injury cases? Current day standards for awards in personal injury cases are class-based in the sense of wealth (damages reflect loss of earning capacity, see McGregor on Damages, above n 12, para 1562), but not in the sense of status; members of the royalty would presumably be in a different situation, in so far as they are generally not wage-earners.

40. Carter-Ruck, above n 30, p 20.

41. Edw I c 34 (1275).

42. 2 Ric II c 5 (1378).

43. 12 Ric II c 11 (1388).

44. R Post ‘The Social Foundations of Defamation Law: Reputation and the Constitution’ (1986) 74 California L Rev 691, 702, n 66, citing Blackstone, W. Commentaries on the Laws of England (London: Spettigue and Farrance, 1869) vol 3, p 123 Google Scholar.

45. Post, above n 44 (analysing reputation as honour, dignity, and property). The Princess's reputation can be seen as a property interest as well, in the sense that the image of chastity until marriage is a valued possession, viewed as a commodity in the marriage market. See below n 96.

46. The Times, 1 March, 4b.

47. Ibid, 18 July, 4a.

48. 50 TLR 581 at 587. 49. 50 TLR 581 at 585.

50. The Times, 6 March, 15c.

51. J Adamson Graham Greene and Cinema (Oklahoma: Pilgrim, 1984) p 14.

52. Ibid.

53. M B Dickinson and S Street Cinema and State: the film industry and the British Government 1927-1984 (London: BFI Pub, 1985) pp 155–156.

54. Ibid.

55. R McKibbin Classes and Cultures: England 1918-1 951 (Oxford: Oxford University Press, 1998) p 434.

56. Dickinson and Street, above n 53. p 33. See also P M Taylor (ed) Britain and the Cinema in the Second World War (Basingstoke: Macmillan, 1988) p 62 (writers in Britain ‘always retained a suspicion of and even a contempt for Hollywood’).

57. Daily Worker, 11 August, 12a. Cf The New York Times, 14 July, 2d (defending a boycott by Church members and ‘miscellaneous bourgeoisie’ against Hollywood, as free expression and a buyer's strike, rather than censorship).

58. 13 August, 12e.

59. ‘Unspeakable’ is used here in the literal sense of the word, ie that about which silence must be kept.

60. Regarding the public/private gendered divide generally, see eg S Fredman Women and the Law (Oxford: Clarendon, 1997) p 16.

61. Fox's Libel Act 1792.

62. In the appeal judgment, Greer LJ wrote that the ‘learned Judge [said that to say of the plaintiff] …“that she has been either seduced or ravished by such a villain as Rasputin is, of course, the worst and most vile libel that could be imagined.”’ 50 TLR 581 at 586. Both Greer LJ and Slesser LJ agreed, see below, text at nn 73 and 74.

63. Above, text at nn 27-29.

64. 50 TLR 581 at 585 (Greer LJ); The Times, 6 March, 5a; see also The Times, 13 July, 4a (Jowitt's recapitulation, to the Court of Appeal, of Avory J's jury instruction). The question of identification was, of course, in addition to the measure of damages to be determined by the jury.

65. Daily Sketch, 2 March, 21b.

66. Daily Sketch, 6 March, 19a.

67. See above, text at nn 28-29.

68. Evening Standard, 1 March, 15a and 5 March, 13a. This is also as the defence argument was understood by Avory J, see below, text at n 104, and the plaintiff, see below, text at n 78.

69. 50 TLR 581 at 584.

70. Scrutton LJ further mischaracterised the finding of defamatory meaning as a finding by the jury rather than the judge at trial.

71. And as The Times report suggests, 2 March, 4b.

72. See Part IV for a discussion of the argument that defamation necessarily entails an imputation of immorality.

73. 50 TLR 581 at 585.

74. 50 TLR 581 at 587 (here, with respect to rape).

75. 6 March, 14b (again, mistakenly noting this finding as that of the jury).

76. 6 March, 15c.

77. The obviousness of the wrong was expressed through the parliamentary debates surrounding the 1891 Act as well. The Bill was passed by the House of Commons without discussion. In the House of Lords, the Earl of Selbome said ‘I should have thought that nobody could doubt it.’ Parl Debs at 1710.

78. Evening Standard, 5 March, 13b.

79. Daily Telegraph, 14 July, 5d.

80. See above, text at notes 61–64.

81. 50 TLR 581 at 584.

82. 13 July, 22c. Nor was the subject of the libel mentioned in that paper's reports of 6 February, 4d, and 18 July, 8d. A description of Youssoupoff in a legal text at the time followed suit. See E Wool A Guide to Libel and Slander (1939) p 20 (the libel in the film ‘suggest[ed] defamatory reflections’). Similar attitudes were evidenced in Temple v Night and Day Magazine Ltd (1938) HCJ, KBD. In the roughly contemporaneous case brought by Shirley Temple and 20th Century Fox against Graham Greene and the magazine for a libel suggesting that the child actress aroused sexual interest among viewers, the court acknowledged that the plaintiffs counsel, again Sir Patrick Hasting, could not read out the libel, stating: ‘Of course it is better to hint than to show.’ The Times, 23 March, 1938, 4b. Nor was any mention made of the subject of the libel by The Times reports of the case. Ibid, and The Times, 6 November, 9b. Even a modem description of the case omitted the subject of the libel, see Adamson. above n 51, p 13 (‘ The review, which cannot be quoted here …’).

83. The combination of euphemism and sensationalism was typical of the reporting of the popular press in this period: the latter to get the audience, and the former to avoid corrupting the masses. I am indebted to Dr Ross McKibbin for informative discussion regarding this phenomenon.

84. This testimony was relevant in order to establish the Prince's portrayal by the character Chegodieff (who in the film murdered Rasputin), through whom the Princess's portrayal by Natasha was established, see below, text at nn 88–97.

85. 2 March, 5a.

86. 1 March, 9a.

87. 6 March, 6c.

88. S Felman ‘Rereading Femininity’ (1981) 62 Yale French Studies 19, 25 (‘ woman [acts] as metaphor of man. Sexuality functions as the sign of a rhetorical convention of which woman is the signifier and man the signified. Man alone has thus the privilege of proper meaning, of literal identity — femininity, as signifier, cannot signify itself; … it can but refer to man, to the phallus, as its proper meaning, as its signified’). This phenomenon also recalls the hiddenness discussed above, see text at n 79.

89. 1 March, A1, 12, 13.

90. Daily Telegraph, 1 March, 6e-f, 15f and 2 March, 6c; Daily Herald, 2 March, 6-7. After his testimony at the trial, offers were made to the Prince to make the story of the murder into a film. Daily Herald, 6 March, 3a. In fact a number of years later the Prince brought a libel suit arising out of a television dramatisation of the story. Youssoupoff v Columbia Broadcasting System Inc (1965) 265 NYS2d 754.

91. 6 March, 15c. See also New York Times editorial, described above, text at n 26.

92. 20 January 1998, 41 b.

93. Scrutton LJ (50 TLR 581 at 583) described Natasha as having a ‘subordinate part’ in the film, ‘brought in because she was on terms of affection’ with Chegodieff.

94. Daily Telegraph, 6 March, 6d-f (citing Avory J). See also The Times, 6 March, 15c (’ Natasha in the film is a woman whose character is tainted by association with Rasputin’).

95. Daily Sketch, 28 February, 2a.

96. See eg Brownlee v MacMillan (1940) All ER 384 (discussion of merits of allowing action by father for seduction). The flip side of this is that while the harm to the Princess is expressed in the sense of her loss of value to a man, at the same time the woman's interest in the marriage proposal is seen as of value to her (Parl Debs at 1707), and even as her property interest, Speight v Gosnay (1891) 60 WQB 23 1, CA (loss of marriage constitutes special damage). Weeks also uses the terminology of property in describing the social purity mores of the period: ‘Virginity remained a priceless possession.’ Weeks, above n 36, p 207.

97. It may be argued that the Princess, as the claimant in the case, is the signified, and that the Prince functions as the signifier in so far as his role as a witness in the case is to identify her. The Princess's identity in the case, however, is not her own, but rather located through men. This may be said to reflect the reality of the historical period. See McKibbin, above n 55, p 518 (most women's relations with the world were mediated in some way by their relations with their husbands, fathers, or brothers). Moreover, in the story of the case, she is the signifier for the Prince, who is the main ‘news’.

98. Weeks, above n 36, p 214. The sexual ‘purity’ expected of women was of course not expected of men, see ibid at 19. This double standard is apparent in the 1891 Act as well. The parliamentary debates on that Act also reflect the unspeakability and prudishness of that period. Lord Bramwell described a case illustrating the ‘grievous… outrageous’ state of the law, only as ‘an action for words spoken of a woman … [a] word of the most offensive character’ -without stating the word. Parl Debs, at 1709. The insidiousness of this unspeakability may be seen today in the effect on rape victims who feel they are unable to speak about, and report, the crime. See The Times, 5 November, 1997, A4.

99. Weeks, above n 36, p 202.

100. Ibid, p 211; J Purvis (ed) Women's History: Britain, 1850-1945 (London: UCL Press, 1995) p 194.

101. Stopes v Sutherland (1923) 39 TLR 677 at 680, CA (successful action for defamation by Dr Stopes for defendant's disparagement of her opening of a birth control clinic in a poor neighbourhood).

102. (1942) 1 All ER 412 at 413.

103. See Daily Herald, 3 March, 6a for use of term with respect to the case.

104. The Times, 2 March, 5b. The judge supplied the full citation: ‘… she has lost a dearer thing than life … Pure chastity is rifled of her store.’ Ibid.

105. The current definition of ‘chastity’ and ‘chaste’ is much the same, adding explicitly the element of morality: ‘Abstaining from unlawful or immoral or all sexual intercourse; pure …’ (emphasis added). Lesley Brown (ed), The New Shorter Oxford English Dictionary on Historical Principles (Oxford: Oxford University Press, 1993 edn)(OED). The OED notes obsolete uses of the term including ‘free from guilt’, ‘innocent’ . I submit that unchastity was at the time of the Youssoupoff judgment and is today still viewed as connoting moral impurity.

106. See above, text at n 15, and discussion below text at nn 114–116.

107. See above, text at nn 68-70.

108. 50 TLR 581 at 588. Slesser LJ's use of the term ‘innocence’ is also suggestive of an absence of (moral) guilt, so that the loss of innocence implies immorality.

109. 50 TLR 581 at 584 (Scrutton LJ), and at 587 (Slesser LJ).

110. Webster's II: New Riverside Dictionary (New York: Houghton Mifflin, 1984). See also OED, above n 105 (’ fill with ecstasy or delight’).

111. One commentator on the case indeed suggests that Scrutton LJ's opinion contains a hint of a woman's fault in rape. S W Halpern The Law of Defamation, Privacy, Publicity and ‘Moral Rights’ (Cincinnati: Anderson Publishing Company, 1988) p 25.

112. J Lewis Women in England 1870-1950: Sexual Divisions and Social Change (Wheatsheaf: Indiana University Press, 1984) pp 89, 126. Women were, then, both more responsible than men and at the same time, because of their child-like purity, more prone to err and less responsible. Ibid at 126. See also J Rendall Women in Industrializing Society: England 1750-1880 (Oxford: Blackwell, 1990) p 49.

113. The origins of the slander per se category of imputing a woman's unchastity also show the link between chastity and immorality. Whereas other slander per se categories were developed by the common law courts to carve out areas not in the jurisdiction of the ecclesiastical courts, which had jurisdiction over all forms of immorality (see above n 30), this category was specifically aimed at allegations of ‘gross acts of immorality’ . Holdsworth, W. S. A History of English Law vol 8 (London: Methuen and Co Ltd) p 348 Google Scholar. See also Gatley, above n 37, para 2.20.

114. See eg R W M Dias (ed) Clerk and Lindsell on Torts (London: Sweet and Maxwell, 16th edn, 1989) para 21-12; B S Markesinis and S F Deakin Tort Law (Oxford: Clarendon Press, 3rd edn, 1994) p 570; 28 Halsbury's Laws (4th edn reissue), p 56; Gatley, above n 37, para 2.20.

115. Gatley, above n 37, paras 2.1,2.10,2.14; Carter-Ruck, above n 30, pp 36-37; B Neill and R Rampton (eds) Duncan and Neill on Defamation (London: Butterworths, 2nd edn, 1983) paras 7.05-7.06. See also above, text at nn 15-16 and below, text at nn 127-128. The English standard looks to the right-thinking members of society generally, however — such that the standard is perhaps somewhat Devlinian, ie looks at some level to what members of the society generally take as right (including perhaps, at least in 1934, the shame of a rape victim), rather than taking a normative view of what constitutes ‘right- thinking’ . See below, text at nn 117, 152–154.

116. See above, text at nn 103–111.

117. (1964) AC 234 at 285 (holding allegation of having been acquitted of crimes which were not in fact charged defamatory on the Youssoupoff standard).

118. CA Civil Div Trans Assoc (hearing 13 November 1991) (statement alleging disrepute of parents of plaintiff held defamatory).

119. (1971) Sup Ct (Ireland) 269 at 272.

120. ‘Esteem’ is defined in the OED, above n 105, as ‘reputation’, and also as ‘value, worth’; ‘estimate’ includes a judgment of a person's ‘character’, and ‘character’ is defined as ‘the distinctive mental or moral qualities of an individual’.

121. (1971) Sup Ct (Ireland) 269 at 272, 273.

122. (1996) 4 All ER 1008, CA.

123. (1996) 4 All ER 1008 at 1018-1020. Further, at trial the judge had found that the statement was capable of a defamatory meaning in that it was likely to lead ‘ordinary reasonable people’ to shun the plaintiff, at 1010 (emphasis added).

124. Millett LJ dismissed the cases in which words are held defamatory because they would cause the plaintiff to be shunned and avoided, as being only with respect to diseases such as leprosy and the plague. In neglecting to refer to Youssoupoff, Millett LJ follows the pattern of judges citing the Youssoupoffstandard only when they are interested in applying it, on the realist interpretation.

125. Philips LJ also cited Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449 at 453, as discussed below, n 151.

126. See below, text at n 145.

127. (1936) 52 TLR 669 at 671, HL, per Lord Atkin. See above n 16.

128. Byrne v Deane (1937) 1 KB 818, CA. See also above, text at n 115.

129. Committee on Defamation (Cmnd 5909) (1975) App V.

130. Ibid Minority Report, A 192.

131. Para 2.6. Gatley, above n 37, further states: ‘it is submitted that it would be defamatory to say that a person was HIV positive even though the statement made it plain that the condition had been acquired innocently, for example by a blood transfusion’.

132. Ibid and Gatly, above n 37, para 2.1.

133. Ibid, paras 2.6, 2.16, 2.20 (citing illegitimacy, cohabitation and, ‘to a lesser extent’, homosexuality).

134. 28 Halsbury's Laws (4th edn), para 42.

135. 28 Halsbury's Laws (4th edn reissue), para 52. See also above n 27 (statement that imputing a woman's unchastity is ‘actionable per se’ absent from 28 Hulsbury's Laws (4th edn, reissue)). Would the issue be decided differently today? A Lexis search found no UK cases regarding defamation of an alleged rape victim, but, interestingly, a case wherein a man won a damages award for being defamed by being called a rapist — demonstrating a shift from society blaming the victim of a rape to society judging the rapist as the wrongdoer. Canada v Lukusic (1985) 18 DLR 4th 245. But see discussion of modem shame of rape victims, above n 98.

136. J G Fleming An Introduction to the Law of Torts (Oxford: Clarendon Press, 1967) pp 195–196.

137. Ibid, p 196.

138. Ibid (criticising the ruling in Byrne v Deane, see n 128).

139. Restatement (Second) of Torts, section 559 comment e (1977). See also Barett-Lidsky ‘Defamation, Reputation, and the Myth of Community’ (1996) 71 Washington U L Rev 1; D More ‘Informers, Defamation and Public Policy’ (1989) 19 Ga J Intl & Comp Law 503, 513–514.

140. (1964) AC 234 at 285.

141. Markesinis, above n 114, p 566.

142. Again, a hint of moral blameworthiness is present in the use of the language ‘lowered in the estimation’.

143. Ibid.

144. Ibid. Like Gatley, above n 37, the authors consider that the law should recognise allegations of a person having certain diseases, such as AIDS, as defamatory. Markesinis, above n 114, p 570.

145. (1935) 51 LQR 281, 282.

146. Price, above n 39, para 2.17.

147. Ibid, para 2.14.

148. Duncan and Neill, above n 115, para 7.03.

149. Ibid, para 7.06.

150. Ibid.

151. (1980) 2 NSWLR 449 at 453. This case contrasts the ‘disparaging’ standard with the Youssoupoff standard, and interprets the latter as allowing for defamatory content to be found notwithstanding the absence of any moral blame on the part of the plaintiff - thus implying that the ‘disparaging’ standard does connote moral blameworthiness. That the ‘lowering of estimation’ standard implies an element of moral blameworthiness also may be seen from the Commission's Majority Report. The Majority sought to define defamatory meaning on the basis of an imputation of moral obloquy to the plaintiff, and the language chosen for their recommended standard was where a publication ‘would be likely to affect a person adversely in the estimation of reasonable people generally’ . Committee, above n 129, p 15.

152. P Devlin The Enforcement of Morals (London: Oxford University Press, 1965) p x. See also ibid, p 17 (standard of morality to be enforced is where a practice inspires ‘intolerance, indignation and disgust’). The position of Hart rejecting the legal enforcement of morality (see H L A Hart Law, Liberty, and Morality (London: Oxford University Press, 1963) p 5) is not reflected in this area; as we have seen, all of the commentators assume that charges of immorality are actionable. See above, text at n 114.

153. R Dworkin Taking Rights Seriously (Cambridge, Massachusetts: Harvard University Press, 1977) p 248.

154. Ibid.

155. See eg Prosser and Keeton on Torts (5th edn, 1984) pp 6, 21–23; Fleming, above n 136, pp 1–10. Many criticise this characterisation of tort law, and develop the theoretical basis of moral culpability for the law of tort. See eg D G Owen ‘Philosophical Foundations of Fault in Tort Law’ in D G Owen (ed) Philosophical Foundations of Tort Law (Oxford: Clarendon Press, 1995) p 228 (wrongs as basis of tort, and fault as core of responsibility for this area of law); T Honore ‘The Morality of Tort Law — Questions and Answers’ in ibid, p 79 n 11 (outcome responsibility, wider than but including fault, as the basis of liability in tort law); J Coleman Risks and Wrongs (Cambridge: Cambridge University Press, 1992) pp 329ff (heart of tort is wrongful loss).

156. See eg D Anderson ‘Reputation, Compensation and Proof’ (1984) 2.5 William and Mary L Rev 747. See also Barett-Lidsky, above n 139. But see Holdsworth, above n 113 pp 335, 347 (lamenting defamation law's concern with damage, and arguing that its focus rather should be on insult and wrong). Interestingly, The Times editorial on the verdict in Youssoupoff interpreted the principle affirmed in the case along the lines of what has been described as the modem trend in tort law, namely that the ‘risk should be [the filmmaker's] and not the victim's: He must not gamble with other people's reputations, or if he does he must pay the losses’ . 6 March, 15d.

157. Gatley, above n 37, paras 1.6, 1.12; E Barendt Freedom of Speech (Oxford: Clarendon 1985) pp 178, 183. This is in contrast with the American standard. New York Times v Sullivan 376 US 254 (1964) (constitutional standard); Restatement (Second) of Torts, section 580B (1977) (common law standard). Some elements of intention remain in the English tort of libel the defences of qualified privilege and fair comment are lost if malice is proven, Gatley, above n 37, para 1.12; malice may be shown for aggravated damages, Rookes v Barnard (1964) AC I 129 at 1221; and procedures for apology are provided by the Defamation Act 1996 for negligent or innocent action.

158. P Mitchell Malice: Ill- Will and Intention in Defamation from 1600 (M S D Phil 1996). For the current standard, see Hulton v Jones (1910) AC 20 (intention of the author, publisher or printer is of no matter), discussed above, n 22.

159. The wrong of defamation can also be seen as the invasion of the plaintiffs legal rights. See below n 162.

160. See above, text at nn 104-111.

161. As we have seen (above, text at nn 40-44), the origins of English libel law lie in the criminal laws of seditious libel, aimed at curbing breaches of the peace. Moreover, the purpose of the award of damages in a libel action has been described as vindication, of both the plaintiff and the public. 28 Halsbury's Laws (4th edn reissue), p 248; see also R P Bezanson ‘The Libel Suit in Retrospect: What Plaintiffs Want and What Plaintiffs Get’ (1986) 74 William & Mary L Rev 799 (US empirical study showed a libel plaintiff's main desire is for public vindication of social reputation). Indeed, upon her award of a large sum in the jury trial, Princess Youssoupoff said to the waiting press, ‘[the verdict] completely vindicates me’ . Evening Standard, 5 March, Ib. Hastings said to the Court of Appeal that heavy damages were appropriate so that her friends would know that grave injury had been done to her. Daily Telegraph, 18 July, 7e.

162. This is so even while, at this period of time and much earlier, the reputational interest was understood in terms of rights. Blackstone, above n 44, vol 1, p 153 (right to reputation is right to personal security). The reputational interest is also a right in the sense that the wrong of trespass generally, including libel, is the invasion of a legal right. G Williams and B A Hepple Foundations of the Law of Tort (London: Butterworths, 2nd edn, 1984) p 57. At the same time, libel is a trespass on a social code.

163. J Stone Social Dimensions of Law and Justice (Stanford, California: Stanford University Press, 1966) p 217.

164. Lewis v Daily Telegraph (1964) AC 234 at 258. This determination is on the basis of a jury finding, see above, text at n 61. Civil libel cases are unique in tort law in retaining the right to a jury trial. Supreme Court Act 1981, s 69. The involvement of juries in defamation actions is further evidence of the uniquely social nature of the tort.

165. For a definition of ‘policy’ as collective goal, see R Dworkin ‘Is Law a System of Rules?’ in R Dworkin (ed) The Philosophy of Law (London: Oxford University Press, 1977) p 43 (hereinafter ‘Dworkin Law’).

166. Post, above n 44, p 711. Hence courts refuse to uphold claims of defamation in a deviant community, see above n 128.

167. 6 March, 14b.

168. See above n 98.

169. This is so, again, in both libel and slander.

170. See discussion of Kerr v Kennedy (1942) 1 All ER 412, above text at n 102.

171. See J Pitt-Rivers ‘Honour and Social Status’ in Peristiany, above n 30, p 21 (honour is the value of a person in his own eyes, and also in the eyes of his society). It is because of this duality of honour, and reputation, that the law of defamation represents both protection of individual rights and social policy making.

172. See above, text at n 161 (discussion of similarity of defamation law with criminal law). See also E Durkheim The Division of Labor in Society (trans G Simpson) (Glencoe Illinois: Free Press of Glencoe, 4th prntg, 1960) pp 79-80 (a criminal offence is an offence against the ‘collective conscience’, namely the common beliefs of matters of fact and common standards of behaviour, including morality, of a society).

173. Fox, G. Litton Nice Girl”: Social Control of Women through a Value Construct’ (1977) Signs II(4), 805–817 CrossRefGoogle Scholar, 820-821. See also J A Sharpe Defamation and Sexual Slander in Early Modem England: The Church Courts at York (York Borthwick Papers No 58) (female conduct regulated through gossip in Tudor and Stuart England).

174. Litton Fox, above n 173, pp 806,817. See also Post, above n 44, p 710 (individual takes into own conduct the institutions of the community, and relies on others to complete the picture of the self).

175. For Durkheim, for example, law (both civil and criminal) reproduces the principle forms of social solidarity. Durkheim, above n 173, p 68.

176. R Cotterell Introduction to Sociology of Law (London: Butterworths, 1984) p 49. The modem view is perhaps a return to the ‘classic’ view, whereby the function of law was taken to be the promotion of moral virtue. Hart contrasted this view with the ‘disintegration thesis’, whereby society is not the instrument of moral life but rather morality is valued as the cement of society. H L A Hart Essays in Jurisprudence and Philosophy (Oxford: Clarendon Press, 1983) p 248 (citing Plat0 and Aristotle for the former view, and Lord Devlin for the latter view).

177. On the moralists’ view, defamation law is indeed a throw-back- not only to the prior view of tort law as about wrongfulness, but also to the classic view of the role of law, see n 176.

178. Pitt-Rivers, above n 171, pp 36-37.

179. Ibid, p 38.

180. For a definition of ‘principle’ based on a requirement of justice or fairness or some other dimension of morality, see Dworkin Law, above n 165, p 43. While I argue that the setting of a legal standard for determining what words are actionable per se in defamation is an act of social policy making, the setting of an idealised community of right-thinking people may be seen as an act of policy making as well. See Barett-Lidsky, above n 136.

181. As Millett LJ commented in his judgment in Berkoff v Burchill (1996) 4 All ER 1008 the shun-and-avoid standard has been applied mostly in cases where the alleged defamatory statement is with regard to the plaintiff's illness or insanity. See above, text at n 122; see also Gatley, above n 37, para 2.2. Upon a moralist reading of the Youssoupoff standard, as is suggested here, allegations of a plaintiff's suffering from a disease such as AIDS, for example, should not be considered defamatory. But see above nn 131, 144 (both Gatley and Markesinis and Deakin take a realist stance on this issue).

182. While a moralist reading of the Youssoupoff standard would not allow these plaintiffs to recover - and should not, given the greater symbolic meaning afforded by a court's decision as to whether to consider a statement defamatory - other causes of action may be appropriate, such as negligence; breach of confidence; privacy (or trespass, nuisance, harassment, or conspiracy); or where a proprietary interest is involved, copyright related actions, passing off or injurious falsehood. See Catley, above n 37, paras 21.1–21.26. Perhaps in addition a tort of intentional infliction of emotional distress would be appropriate in these situations.

183. M A Glendon ‘Story and Language in American Law’, Introduction to Abortion and Divorce in Western Law (Cambridge, Massachusetts: Harvard University Press, 1987) p 8. See also R Cover Nomos and Narrative (1983) 97 Harvard L Rev 4 (narratives of law locate and give meaning to rules and principles of law which bridge the gap between reality and our aspirations for society).