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11 J. Media L. & Prac. 114 (1990)
The Law of Passing-off

handle is hein.journals/tojmedlp11 and id is 114 raw text is: Defamation: Libel and Slander, Hon. Theodore R. Kupferman (ed.), Meckler Corpn, Westpoint and London, 1990. 236pp. £30. This reviewer once taught defama- tion law in the United States but before he began to do so he was brought up against the reality of the First Amendment by the account in the (generally very staid) local news- paper of the contest of popular election to local judicial office. A brief biography of candidate 'X' concluded by saying that 'a local attorney commented, I don't know how this jerk even managed to pass the bar exams'. Even a cursory examination of the historical record will show that in framing the First Amendment the founding fathers were exercised not by the private law of defamation (Benjamin Franklin, for example, seems to have been very favourably disposed towards it) but by the fear of legis- lation ('Congress shall make no law ...') criminalising 'sedition' or inhibiting public discussion of political and constitutional matters. However, it is one of the funda- mentals of US constitutional law that the plain meaning of words and the intention of the legislator have little significance when federal judges embark on law-making (and not merely of the interstitial variety) and NY Times v. Sullivan ((1964) 376 US 254) shifted the law very sharply towards the 'absolutist free speech' stance. Since then there has been something of a reaction and defamation is still a flourishing legal industry, though the widespread dissatisfaction with the law is demonstrated by the existence of a number of 'reform projects' aimed at modifying the suit for damages model of the common law. This book is a collection of articles from the journal 'Communications and the Law' covering the period 1979 to 1988 and grouped around the broad theme of defamation (three other collections cover privacy, secrecy and advertising and commercial speech). The intended audience seems to be a fairly general one and most of the authors are non- lawyers, so the pieces lack that ponderous quality associated with the American law review. The two pieces which are closest to tradi- tional law review style (Youm and Stonecipher on the 'Innocent Con- struction' rule and Youm on 'Single Instance' accusations) are of fairly localised interest even in the USA and English readers are more likely to be drawn to the articles (11 of the 14 in the collection) which touch on the First Amendment. Among the more valuable are two pieces by Spellman. The first, 'Fact or Opinion: Where to Draw the Line' examines the difficulties which have arisen from the Supreme Court's rather 'throw-away' line in Gertz v. Robert Welch Inc. ((1974) 418 US 323,339-340) that 'opinions' are not subject to the law of defamation. The other, 'Avoiding the Chilling Effect', examines the insurance background and reminds us that while it may be very difficult for a public figure to win a media libel action (see, for example, the Sharon and Westmoreland cases) or to carry a first instance win through the appeal stages (see Franklin's 1980/ 81 study for the ABA) this does not necessarily mean that the 'chilling' effect on the media is absent because the legal costs of successful defence may be very high. Cohen and Gunther in 'Libel as Communication Phenomena' offer a behavioural science viewpoint which questions the common law's claimed assumption that defama- tion causes a uniform and direct damaging effect on reputation, arguing instead that quantitative studies 'demonstrate that mass mediated messages influence dif- ferent people to different degrees'. Such a conclusion is hardly very astounding (indeed it is hard to see how anyone can ever have thought otherwise) and the authors do not offer any practical prescription but merely the rather lame conclusion that 'research in communication brings us to a point at which we may begin to operate with more precision to identify what we mean by damage to reputation, and to identify the cir- cumstances under which a com- munication may be reliably held to account for damage to reputation'. In any event, their thesis ignores the fact that whatever the formal defi- nition may say the law in this area is at least as much about insult and outrage as about loss of reputation. However, it is nice to have the story of the dancing Cherry sisters of Iowa, who proved that any publicity is good publicity by playing to packed houses after unsuccessful libel suits against reviewers. The Sullivan decision required a 114 public figure to prove knowledge or recklessness as to falsity. Not sur- prisingly, the same court in Herbert v. Lando ((1979) 441 US 153) held that it was permissible to question the journalist-defendant as to state of mind. Andre Briod's contribu- tion to this collection is based on a survey among journalists of res- ponses to Herbert v. Lando and reveals something approaching American law in relation to 'dis- covery': as one associate editor memorably put it, 'if juries get into the question of malice based on what was in someone's mind, then it becomes a subjective inquiry. That could lead us almost anywhere'. W.V.H. Rogers Professor of Law, Leeds Christopher Wadlow, The Law of Passing-Off, Sweet & Maxwell, 1990, xliii (incl. table of cases) + 497pp. (incl. bibliography & index). Passing-off is a common law economic tort concerned with the protection of business goodwill from third parties wrongly trying to exploit it for themselves, most com- monly by passing their goods or services off as their competitors'. The term passing-off itself was first used in a law report in 1842, so we are approaching the sesquicenten- nial of passing-off as a nominate tort and it is therefore appropriate that this excellent book should appear now. The protection of goodwill has assumed increasing legal and economic importance in recent years (see controversy, in the UK, over the accounting treatment of important brand names in company accounts). The rise in value of intan- gible intellectual property rights has led to increased emphasis on the appropriate legal mechanisms for protecting the often expensive investment in development, marketing and promotion. In the media world the all- pervasive desire to cash in on popular stars of sport and entertain- ment is seen everywhere (the UK is currently witnessing the marketing of the 'Mutant Ninja Turtles' which have been immensely successful in the US). Current media stars are being invited to give approval to the whole range of products - the latest in England is Paul 'Gazza' Gascoigne, whose soccer success with England in the 1990 World Cup MEDIA LAW & PRACTICE, SEPTEMBER 1990

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