An Excerpt from The Law of Reputation and the Interest of the Audience| September 26, 2011
When Shakespeare wrote in Othello, “Who steals my purse steals trash; ’tis something, nothing;/’Twas mine, ’tis his, and has been slave to thousands;/But he that filches from me my good name/Robs me of that which not enriches him,/And makes me poor indeed,” he was pressing a universal sentiment: the importance of reputation. Shakespeare’s equation of reputation to monetary wealth suggests a simple, property-based interest in reputation: it is something that is owned, can be stolen, and has a calculable value. Many legal and cultural discussions of reputation reinforce this view, suggesting that one’s reputation is a matter predominantly of individual or corporate interest and therefore is something over which one can and should have control.
But reputation is not property in a Lockean sense; rather, reputation is a social creation dependent on intergroup communication. Although an individual or firm may have control over many of the statements, acts, and other data points that form the basis of reputation, neither one ultimately has control over the result of that assessment, the pronouncement of which is a task reserved to others. At its core, then, reputation is the result of the collective act of judging another and the potential use of that result to direct future engagements.
Various aspects of trademark law target uses of a trademark that are said to have negative effects on a firm’s or brand’s reputation. Copyright lawsuits can seek to redress not only economic harms but also the use of one’s creative material in a way that casts a shadow on the artist’s intent or affiliations. The common thread among all these various causes of action, from the plaintiff’s view, is that the defendant has made an express or implied false statement that causes disruption to the plaintiff’s sense of identity or autonomy. But this interest is not equally reflected in each of these causes of action. As a result, we have areas of the law that have reputational harms as a core concern and largely focus on that interest (defamation and trademark infringement); areas of the law that are not designed to vindicate reputational harms but often are used in service of that goal (copyright law, right of publicity, and privacy law); and areas of the law that are supposed to be about reputation but upon closer inspection do not truly address reputational interests (trademark dilution).
This state of affairs has resulted, in part, from a focus on the plaintiff’s interests. Scholars have offered various justifications for the law’s protection of reputation, including that it should be protected as a property interest; that it should be protected in order to preserve human dignity; and that it should be protected to vindicate society’s interest in a hierarchal system of honor and prestige.4 While these explanations are illuminating, each of them focuses on the law’s interest in reputation from the perspective of the holder of reputation, consistent with a civil litigation structure that assumes that plaintiffs are acting in their own interests. It might therefore not be surprising that plaintiffs who feel that they have suffered a reputational injury would seek to vindicate that harm through any available cause of action, whether or not that tort is meant to redress reputational harms. But reputation is of interest not only to the holder of reputation, for whatever economic or psychic benefits it can provide, but also, in a more limited way, to those who interact with the reputation holder, either for use as a form of warranty, to reduce search costs, or as a signaling device. Both reputation holders and audiences have an interest in ensuring that one’s reputation—whether that of an individual or that of a firm or product—is based on accurate information. To the extent, then, that we believe that the law provides too many avenues to redress reputational concerns, a more consistent incorporation of the social nature of reputation would help to cabin the expansiveness of plaintiffs’ efforts to vindicate reputational interests, limiting such claims to those in which the ability of the relevant social group to make accurate judgments about the plaintiff is likely to be hampered.
Consideration of some of the various causes of action used to vindicate reputation allows us to see where the interests of plaintiff and audience might conflict. For example, where the defendant’s activity consists of conveying a falsehood by impersonating or speaking on behalf of the plaintiff, the audience’s interest in accurate information is largely aligned with the plaintiff’s interest in stopping such activity. A truthful communication that affects the plaintiff’s reputation, by contrast, may well cause an audience to think differently of the plaintiff, but it does not implicate audience interests to the same extent; indeed, it may well be consistent with audience autonomy, even if it frustrates the plaintiff’s autonomy by depriving the plaintiff of control over the timing or form of disclosure. Courts might therefore be more skeptical of claims by plaintiffs that seek to limit the dissemination of truthful information on the grounds that such information will cause reputational injury. Additionally, a focus on audience interests may influence the appropriate form of remedy, even if it does not limit the kinds of claims a plaintiff might bring. For example, a reputational injury might be ameliorated sufficiently through a disclaimer or retraction that corrects the informational imbalance as opposed to an injunction or a significant monetary award to the plaintiff.