Morris v. Magnanti: blogs, the sex trade and the changing face of reputation in defamation law
This week’s quick blog post relates to an interesting defamation coming down the pipes in the Scottish courts. The interesting part of the case centers upon the Plaintiff by Counterclaim. She’s a forensic pathologist who is suing her former boyfriend for his public allegations that she was never a sex worker (*nb: I’ve decided to use the term “sex worker” based on the understanding that it is the preferred nomenclature here in Canada).
This one will require some explaining — a brief background can be found here: http://www.telegraph.co.uk/women/sex/11472374/Belle-de-Jour-author-Brooke-Magnanti-insists-she-was-a-call-girl.html).
The facts
The claimant, Dr. Brooke Magnanti started an anonymous blog — La Belle de Jour — in 2003 to discuss the trials and tribulations of her alleged life as one of British high society’s most in-demand sex workers, a career which she maintains helped her finance her PhD in forensic pathology (hence, the “Dr.”). After maintaining her anonymity for several years, Dr. Magnanti’s identity was “outed” in the British press in 2009.
The result was apparently something of a windfall for Dr. Magnanti: she landed several book deals and her story was adapted into UK TV’s Secret Diary of a Call Girl. In fact, just a few weeks ago she gave a TED Talk on the importance of anonymity for marginalized activists and writers (check it out here: https://www.youtube.com/watch?v=1ZnXPVyWP8w&list=PLsRNoUx8w3rNXcBCmETUz-uICayZayaSo).
But her newfound fame wasn’t without its pitfalls: one of the recurring protagonists in her blog was a former boyfriend, a Mr. Owen Morris, whom Dr. Magnanti referred to by the pseudonym “the Boy”. Nevertheless, when her identity was revealed, eventually, so was his.
In the aftermath, Mr. Morris sued his former flame, alleging that her blog and its revelation had damaged his career as a pilot in the Royal Air Force, and his reputation generally (http://www.dailymail.co.uk/news/article-2388986/Belle-Jour-lover-I-dont-believe-prostitute-Boyfriend-seven-years-claims-author-invented-notorious-best-selling-sexploits.html).
Most importantly: in making his claim, Mr. Morris asserted that Dr. Magnanti was never engaged as a sex worker. Dr. Magnanti responded by launching a counterclaim in defamation against Mr. Morris for alleging that she had lied about her past, thereby attacking her honesty and credibility as a writer and thinker on the issue of the sex trade.
Why we should care: the changing face of reputation
In practical terms, Morris v. Magnanti is a fairly straight-forward defamation claim/counterclaim, with two parties trying to protect the professional reputations that they’ve woven for themselves. What makes it interesting is that it might be the first time in Britain where a former sex worker has attempted to defend her reputation specifically in that context.
The case got me thinking about how fluid the concept of reputation has become in our 21st century, hyper-connected society. Professor Hillary Young of Queen’s University [Bias alert: my former law school alma mater] wrote an excellent paper on the subject in which she emphasized how defamation was a uniquely “sociological tort” (See: But Names Won’t Necessarily Hurt Me: Considering the Effects of Disparaging Statements on Reputation, Queen’s Law Journal, Fall 2011, Vol. 37 Issue 1, p. 1).
It certainly does give pause for thought: If I had been writing this blog in a previous generation, the stigma around sex work may well have hampered Dr. Magnanti’s counterclaim at the outset. Previously, the sex trade was not viewed through the objective clinical/sociological prism that it enjoys today. As a result, the very notion that being a sex worker might form the foundation of someone’s reputation and sense of worth in the general public was unheard of.
Legally speaking, Dr. Magnanti might have run up against the dictum in defamation law that you can’t defend a reputation that doesn’t exist (and who knows? she still might). To make the point, I’m drawn to a nice elucidation from the Superior Court of Ontario’s decision in Bernstein v Poon (2015 ONSC 155) — a case that I commented upon a few weeks ago. That decision discussed an argument sometimes advanced that a plaintiff has no good reputation to defend (meaning that their reputation cannot have been harmed):
[172] In Leonhard v Sun Publishing Co. Ltd. (1956) 4 D.L.R. (2d) 514 (BC SC), citing Scott v Sampson as authority, it was concluded that the plaintiff had no reputation capable of being injured and, thus, was entitled to nominal damages of $1. And in the seminal case of Ruskin v Whistler, (unreported) heard at the Old Bailey in 1878, the jury, after concluding that John Ruskin’s criticism of the artist James McNeill Whistler’s painting Nocturne in Black and Gold: The Falling Rocket was defamatory (“I have seen, and heard, much of Cockney impudence before now; but never expected to hear a coxcomb ask two hundred guineas for flinging a pot of paint in the public’s face.”), awarded the plaintiff damages of one farthing.
In my opinion, the fact that a claimant is confident enough to defend her reputation as a former sex worker is an interesting example of how people are increasingly able to control the definition ascribed to their own “reputation”. For further evidence, see this recent article from the BBC about the growing trend of sex workers in Australia “coming out”: http://www.bbc.com/news/blogs-trending-32165949
The takeaway is that certain societal norms and mores about how we characterize a person’s “reputation” may be changing. This in turn, may have a noticeable effect on how courts determine: (1) whether a statement was defamatory; and (2) the sort of damages that should be apportioned to a successful claimant.
Of course, the author makes no judgments as to the veracity of the claims made in Morris v. Magnanti, or the legal outcome of the action itself. Nevertheless, the Scottish court* hearing the matter may be forced to deal with modern society’s perception of sex work in 2014. If so, the result may have some very interesting implications for English jurisprudence, which in turn, might also influence Canadian courts.
- *One important point to note is the likely reasoning behind why the suit would have been brought before the Scottish courts. Following passage of the Defamation Act, 2013 in the United Kingdom (the “Act”), English defamation law became more defendant-friendly than its Scottish and Irish counterparts. The Republic of Ireland has its own defamation legislation, while in Scotland, the Act has very limited application. This leads to an interesting question for the future as to whether Scotland or Ireland will replace London as the center for so-called “libel tourism”or “forum shopping” by plaintiffs to defamation actions.
- This article is a general survey of the law and expresses Mr. Donald’s personal views on the subject matter discussed. It is not a substitute for, nor does it constitute legal advice. Viewing this article does not create a lawyer-client relationship.
