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 6: The Public’s Answers

Roy Baker

Subjects: law - academic, information and media law


INTRODUCTION This book began by asking about the relevance of empirical research into social attitudes when it comes to deciding what is defamatory. I have presented two contrasting positions on the issue. The one I have called moralism suggests that surveys of public opinion only partially reveal the legal construct known as the ‘ordinary reasonable person’. The converse position, realism, suggests that opinion surveys have the potential to conclusively demonstrate what is and is not defamatory. Whatever the correct legal position may be, it is instructive to compare public opinion with actual trial outcomes, as well as the views of those charged with regularly determining or advising on what is defamatory, namely judges and legal practitioners. With that in mind, this chapter, together with the following two, report on the results of qualitative and quantitative research into attitudes prevalent in the general community. These included phone surveys of 4040 Australian residents, selected as representative samples of Australia’s adult population, as well as focus group discussions involving various sections of that community. Chapters 6 and 7 report the outcome of those discussions, as well as phone surveys of 3000 Australian residents which were complemented by studies using questionnaires distributed to undergraduate university students. Chapter 8 will then report on the outcomes from further phone surveys conducted among an additional 1040 Australians. PHONE SURVEY METHODOLOGY In summary, each of 3000 respondents, chosen as a representative sample of adults resident in Australia, was randomly allocated one of the ten hypothetical media reports that...

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