Defamation Law and Social Attitudes

Defamation Law and Social Attitudes

Ordinary Unreasonable People

Roy Baker

Drawing on a thorough examination of case law, as well as extensive empirical research, including surveys involving over 4,000 members of the general public, interviews with judges and legal practitioners and focus groups representing various sections of the community, this book concludes that the law reflects fundamental misperceptions about what people think and how they are influenced by the media. The result is that the law tends to operate so as to unfairly disadvantage publishers, thus contributing to defamation law’s infamous ‘chilling effect’ on free speech.

Chapter 1: Introduction

Roy Baker

Subjects: law - academic, information and media law

Extract

THE ENQUIRY Defamation law is often portrayed as managing two opposing interests. On the one hand there is the publisher’s right to free speech, on the other the plaintiff’s interest in reputation.1 Generally, the debate focuses on the conditions in which the law should, and should not, permit defamatory material. In such discussions, freedom of speech is generally recognized as paramount. The question then becomes how to tailor defences to defamation so as to best protect that liberty, while also acknowledging interests in reputation. Less regard is given to the simple observation that those defences only become relevant once a work has been deemed defamatory. The question of what is defamatory is sometimes passed over as a relatively straightforward threshold issue warranting little attention. But what many authors find ruinous is not that they lack a defence, but the emotional and financial cost of establishing one. In many cases those burdens will remain relatively unaltered, whatever fine-tuning we give to the defences. What matters more to publishers is if someone, somewhere, decides that it is worthwhile arguing that their work meets the legal definition of defamation. It is only then that the publisher’s problems begin. Conversely, terrible suffering and loss can result from the published word. But if a publication is not thought to be defamatory then there may well be no redress, regardless of how damaging or upsetting it might be. Of crucial importance, then, are the perceptions of courts, lawyers and the lay public in terms of...