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 9: Conclusion

Roy Baker


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 [ordinary reasonable person] provides essentially an objective test.1 Indeed, most lawyers were generally more concerned to...

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