ORDINARY unREASONABLE PEOPLE SOCIAL ATTITUDES AND DEFAMATION LAW Roy Baker A thesis submitted for the degree of Doctor of Philosophy University of New South Wales 2010 PLEASE TYPE THE UNIVERSITY OF NEW SOUTH WALES Thesis/Dissertation Sheet Surname or Family name: BAKER First name: NICHOLAS Other name/s: ROY Abbreviation for degree as given in the University calendar: PhD School: LAW Faculty: LAW Title: ‘Ordinary Unreasonable People: Social Attitudes and Defamation Law’ Abstract 350 words maximum: (PLEASE TYPE) 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. Declaration relating to disposition of project thesis/dissertation I hereby grant to the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or in part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all property rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstracts International (this is applicable to doctoral theses only). …………………………………………...... ………………………………..……………… ……….…………………….. Signature Witness Date The University recognises that there may be exceptional circumstances requiring restrictions on copying or conditions on use. Requests for restriction for a period of up to 2 years must be made in writing. Requests for a longer period of restriction may be considered in exceptional circumstances and require the approval of the Dean of Graduate Research. FOR OFFICE USE ONLY Date of completion of requirements for Award: THIS SHEET IS TO BE GLUED TO THE INSIDE FRONT COVER OF THE THESIS COPYRIGHT STATEMENT I hereby grant the University of New South Wales or its agents the right to archive and to make available my thesis or dissertation in whole or part in the University libraries in all forms of media, now or here after known, subject to the provisions of the Copyright Act 1968. I retain all proprietary rights, such as patent rights. I also retain the right to use in future works (such as articles or books) all or part of this thesis or dissertation. I also authorise University Microfilms to use the 350 word abstract of my thesis in Dissertation Abstract International (this is applicable to doctoral theses only). I have either used no substantial portions of copyright material in my thesis or I have obtained permission to use copyright material; where permission has not been granted I have applied/will apply for a partial restriction of the digital copy of my thesis or dissertation. Signed ............................................................... Date ............................................................... AUTHENTICITY STATEMENT I certify that the Library deposit digital copy is a direct equivalent of the final officially approved version of my thesis. No emendation of content has occurred and if there are any minor variations in formatting, they are the result of the conversion to digital format. Signed ............................................................... Date ............................................................... I II ORIGINALITY STATEMENT I hereby declare that this submission is my own work and to the best of my knowledge it contains no materials previously published or written by another person, or substantial proportions of material which have been accepted for the award of any other degree or diploma at UNSW or any other educational institution, except where due acknowledgement is made in the thesis. Any contribution made to the research by others, with whom I have worked at UNSW or elsewhere, is explicitly acknowledged in the thesis. I also declare that the intellectual content of this thesis is the product of my own work, except to the extent that assistance from others in the project’s design and conception or in style, presentation and linguistic expression is acknowledged. Signed …………………………………………….............. Date …………………………………………….............. Some of the research and findings contained in this thesis have already been published by me. Those publications are: 1. Roy Baker, ‘The “Ordinary Reasonable Person” in Defamation Law’ (2003) 22.4 Communications Law Bulletin, 20 - 23; 2. Roy Baker, ‘The Rookie and the Silk: Learning the “Ordinary Reasonable Person” in Defamation Law’ (2007) 12.4 Media & Arts Law Review 399 - 422; 3. Roy Baker, ‘Defamation and the Moral Community’ (2008) 13.1 Deakin Law Review 1- 35; 4. Roy Baker and Julian Leslie, ‘Rethinking the Defamation Jury’ (2008) 13.4 Media & Arts Law Review 422 - 46; 5. Roy Baker, ‘Defamation and the Culture Wars’ (2009) 14.4 Media & Arts Law Review 425 - 54. III IV 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. V VI OUTLINE TABLE OF CONTENTS ABSTRACT ...................................................................................................................................... V OUTLINE TABLE OF CONTENTS...............................................................................................VII