Chapter 2: Formulating the Test for Defamation
INTRODUCING THE COMMON LAW TEST OF DEFAMATION The preceding chapter presented various ways in which a legal system might decide whether a publication is defamatory. Little was said about what the common law actually has to say on the issue. Other than to state that the issue is not open to evidentiary proof, I simply alluded to the law being unclear. The purpose of this chapter is to begin to explore how courts in common law jurisdictions typically decide what is defamatory. In particular, I look more closely at the extent to which the matter can be decided empirically. The lack of clarity in the test for defamation is often accounted for by the supposed difﬁculty in adequately deﬁning what constitutes a defamatory publication. Indeed, the task is often presented as though beyond human endeavour. ‘There is no wholly satisfactory deﬁnition’, writes one of the foremost authorities.1 ‘Legal scholars, no less than judges, have tried their hand at it, unsuccessfully it must be admitted’, writes another leading commentator.2 As though to make his point, the latter collects together some 30 or more formulations of the test as to what is defamatory. These are drawn from over one hundred cases, decided in half a dozen common law countries and over almost as many centuries. Even then they do not sufﬁce, the writer concluding that ‘publication of some remark may do all of these things or none and still be defamatory for reasons that have yet to be...
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