Ordinary Unreasonable People
Chapter 9: Conclusion
JOBNAME: Baker PAGE: 1 SESS: 3 OUTPUT: Tue Nov 1 13:28:16 2011 9. Conclusion This book has examined an aspect of defamation law often passed over in the literature. Much is said about the need for the law to facilitate open, bona ﬁde discussion in relation to matters of public interest. For good reason, emphasis is given to the law’s chilling effect, particularly for the media. Consequently, efforts have been made, with varying degrees of success, to tailor defences that respect the right to freely impart and receive facts and opinions about those who matter in public life. Less attention has been paid to the more basic consideration that always arises for those who see themselves as potential defamation plaintiffs or defendants, together with their legal advisers, as well as the judges and jurors charged with hearing defamation actions: is the relevant material defamatory in the ﬁrst place? If the answer to that question is no, neither the potential parties to defamation litigation, nor the courts before which they appear, need to give any thought to the material’s defensibility. Most of the lawyers and judges interviewed for the NDRP were of the view that the test for defamation rarely proves problematic. Justice David Levine, who was for many years the principal judge for defamation trials in the New South Wales Supreme Court, has publicly stated that he has never been troubled by the ‘ordinary reasonable person’ test: With what would it be replaced? With all its faults, the...
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