Defamation Law and Social Attitudes
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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.
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Chapter 5: The Lawyers’ Answers

Roy Baker


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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