Ordinary Unreasonable People
Chapter 8: Accommodating the Third-Person Effect
JOBNAME: Baker PAGE: 1 SESS: 3 OUTPUT: Tue Nov 1 13:28:16 2011 8. Accommodating the third-person effect 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...
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