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 8: Accommodating the Third-Person Effect

Roy Baker


The last chapter points to a distortion of defamation proceedings by the third-person effect. It seems that this tends to unfairly advantage plaintiffs at the expense of defendants, or at least media defendants. Two obvious solutions spring to mind. One is to ask judges and juries to apply their own interpretation of the publication in question, and to decide connotation on the basis of their personal values. That is the more radical response, one that has obvious dangers of its own, not least that it can only meet the purposes of majoritarian realism if the views of judges and juries invariably reflect those of the general community. The second, less radical solution is to simply educate judges and juries in the third-person effect so that they can take it into account when applying the ‘ordinary reasonable person’ test. There is, of course, a danger that judges and juries will over- or under-react upon being told about the third-person effect. The point is worth repeating: many individuals will be quite right to anticipate that their own response to a publication would be markedly different from that of most others. The third-person effect constitutes a collective misapprehension of public attitudes, not necessarily a misunderstanding by those individuals who display it. Before rushing to recommend solutions, however, we might ask the extent to which the effect is truly universal. In particular, will it arise regardless of what a publication imputes? This chapter reports the results of an additional eight phone surveys, conducted...

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