Ordinary unreasonable people: social attitudes and defamation law

Abstract

This thesis concerns the way in which the common law determines whether a publication is defamatory. It also touches on some related matters, such as the assessment of damages for defamation.

The law frames the test for defamation not in terms of the reactions to a publication of its actual recipients, but rather the imagined responses of a hypothetical audience, whose members the law often describes as ‘ordinary reasonable people’. Through an analysis of case law, the thesis concludes that the legal test for defamation is ambiguous, not least as to whether it should always reflect mainstream opinion, even when it is anticipated that most people would respond to a publication irrationally.

In light of such uncertainties, the thesis explores the law’s practical application, reporting on interviews with eight judges and 28 defamation lawyers, assessing how they understand and apply the law. It concludes that the majority of lawyers understand the test for defamation as intended to reflect how most people think, both in terms of their values as well as how they interpret communications.

With that in mind, the thesis presents empirical findings on whether defamation law achieves that end. By means of a phone survey of 3,000 adults, selected to represent Australia’s resident population, as well as eight focus groups conducted among sections of the general community, plus student surveys, answers are sought as to how a number of potentially defamatory publications are received among the public. A disconnect emerges between, on the one hand, the outcome of defamation trials and the views of judges and lawyers as to what is defamatory and, on the other, the way in which people actually respond to publications.

Through further empirical research, the thesis accounts for this disparity by reference to a phenomenon identified in communications studies as the ‘third-person effect’: the tendency for individuals to perceive the negative impact of media messages as greater on others than on themselves. The thesis concludes that the law’s reliance on imagined, as opposed to real responses to potentially defamatory material distorts defamation law, unfairly benefiting plaintiffs at the expense of defendants, thus exacerbating the law’s chilling effect on free speech.