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 7: The Third-Person Effect

Roy Baker


INTRODUCTION So far this book has examined four answers to the question whether ten hypothetical media reports are defamatory: those given by precedent, by judges, by practitioners and by a sample of the general community asked to give their own views. These findings suggest that judges, and even more so practising lawyers, tend to overestimate the propensity of the general public to think less of people to whom the media impute a range of acts and conditions. In the case of the practising lawyers, it has also been established that the longer their legal experience, the more likely they are to make this error. The conclusion might be drawn that exposure to legal practice, at least in the area of defamation law, increasingly distorts perceptions of community attitudes. A hackneyed criticism of lawyers, and particularly judges, is that they do not understand ‘ordinary’ people. In 2004 a survey, conducted among readers of Sydney’s leading tabloid newspaper, found that a majority of respondents thought that judges and magistrates are out of touch with the community in regard to a range of issues.1 The newspaper used the results to contend that penalties for crime are generally perceived as overly lenient. In that case, it is curious why the journalists did not simply ask respondents whether they believed judges to be out of touch with the respondent’s own values. Clearly it was considered unnecessary to distinguish between community values and the community’s perception of community values. The evident assumption is that the public...

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