Chapter 3: Refining the Test
JOBNAME: Baker PAGE: 1 SESS: 3 OUTPUT: Tue Nov 1 13:28:16 2011 3. Reﬁning the test INTRODUCTION The last chapter outlined the test for defamation and introduced some of the ambiguities it contains. This chapter explores in more depth what various judges have understood the test to be, while the next chapter looks at some of the outcomes when the test has been implemented. In each case the fundamental purpose behind the enquiry is to eke out the role of empiricism in defamation law. In other words, to what extent are courts concerned with assessing popular, as opposed to ideal, attitudes? The emphasis in this chapter, as in this book as a whole, is on the element of the test for defamation that deﬁnes the relevant audience, meaning the group of people whose interpretations, values and opinions should be taken into account when deciding what is defamatory. We start, therefore, with a more thorough examination of how that group has been described by judges over the course of the last century and more. THE RELEVANT AUDIENCE IN PRECEDENT Empiricism is least relevant to determining what is defamatory when some normative criterion deﬁnes the population whose opinions count. Many formulations of the test for defamation contain some transparently normative descriptors for that audience, such as ‘right-thinking’1 or ‘decent’.2 These terms are increasingly absent from recent formulations and ‘reasonable’ now seems the preferred term. One possible explanation is that the former have come to represent particular moral...
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