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 3: Refining the Test

Roy Baker

Subjects: law - academic, information and media law


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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