Lawrence McNamara, Faculty of Law, University of Western Sydney, Macarthur
The MGM film Rasputin, The Mad Monk was the subject of one of the most famous libel actions in British legal history. At trial, the plaintiff Princess Irina Alexandrovna Youssoupoff was awarded oe25 000 damages by a jury who decided that the film had falsely depicted her as having had "either relations of seduction or relations of rape with the man Rasputin." When the Court of Appeal was called upon in 1934 to determine whether it could be defamatory to say of the Princess that she had been raped, they decided unanimously that an allegation of rape was as a matter of law capable of being defamatory even where an imputation does not suggest any "moral discredit" on the part of the plaintiff it can still be defamatory if it would tend to make others "shun and avoid" the plaintiff. The legal principle from Youssoupoff v Metro-Goldwyn Mayer (1934) 50 TLR 581 remains law to this day in England and Australia.
This paper examines critically the idea of moral discredit as it is used by the Court of Appeal, contrasting it with the notion of moral worth. Such a distinction, when read with the laws of the time, reveals the moral positions which are hidden by the Court's reasoning and suggests a different interpretation of the case than that which has become authoritative. It will be argued in conclusion that the development of "shun and avoid" as a separate criteria for what is defamatory is incorrect as a matter of history and doctrine.