Chapter 5: The Lawyers’ Answers
INTRODUCTION So far I have presented the test for defamation as containing certain ambiguities. It is uncertain whether majority public opinion is determinative of what is defamatory, or whether the views of certain minorities can be taken into account. Also unclear is the extent to which the law applies a normative, as opposed to numerical yardstick when deciding whether certain responses to a publication sufﬁce to render it defamatory. Those ambiguities cast doubt on the role of empiricism when it comes to determining whether a publication is defamatory. What is more, one might expect such ambiguities to lead to confusion, or at least inconsistency, among those charged with deciding whether a publication is defamatory. In order to determine whether such doubts or inconsistencies exist, surveys were conducted among three groups who are or may be called upon to decide what is defamatory. First there is the general public, any of whom may come into contact with defamation law, whether through feeling defamed, jury service or wanting to write or speak about others. The results of focus group discussions and surveys conducted among the general community are reported in the subsequent chapters of this book. This chapter concerns interviews with people who experience rather more regular contact with defamation law. Towards the end of the chapter I discuss the results of conversations with 28 legal practitioners who have varying degrees of involvement with the ﬁeld. Before then I look at discussions I had with eight judges, all of whom have...
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