The Law of Reputation and the Interest of the Audience

Abstract

Although an individual has control over many of the statements, acts, and other biographical data points that are used to construct her reputation, she does not ultimately have control over the result of that reputational assessment, the pronouncement of which is a task re-served to others. Reputation is fundamentally a social concept; it does not exist until a community collectively forms a judgment about an individual or firm that has the potential to guide the community’s future interactions. Despite reputation’s relational nature, discussions of the law’s interest in reputation tend to focus on one of two parties: the individual or firm holding the reputation and the defendant accused of having unlawfully harmed that reputation. This framework leads to particular conceptions of the reputational interests, such as from a property or dignity perspective, and of the countervailing, often First Amendment–related, interests of the defendant. But the community that constructs one’s reputation also has an interest in the soundness of a reputation’s foundation so that future uses of others’ reputations will be effective. A more complete conception of reputation, therefore, should take such community interests into account.

Keywords: copyright, trademark, reputation, reputation economy, goodwill, defamation, privacy