Rethinking the defamation jury

Roy Baker, Julian Leslie

Research output: Contribution to journalArticle

Abstract

How should a court decide what is defamatory? Probably the most significant inconsistency remaining between Australias various jurisdictions is that in some this matter is decided by a jury, while others leave it to a judge. Building on research into the third-person effect, which exaggerates perceptions of the medias potential to harm reputation, this article questions the preference for jury trials as a way of reflecting public opinion. Looking beyond the comparative advantages of extant jury and judge-alone trials, we call for a radical reappraisal of defamation litigation. By mathematically demonstrating how the views of a single person suffice to capture what the majority thinks, we suggest the deliberate injection of subjectivity into defamation verdicts, as part of an attempt to substitute methodological rigour for conjecture and iniquity.
Original languageEnglish
Pages (from-to)422-446
Number of pages25
JournalMedia and arts law review
Volume13
Issue number4
Publication statusPublished - 2008

Keywords

  • Defamation law
  • libel and slander
  • media law
  • journalism and the law
  • jury
  • juries
  • third-person effect
  • freedom of speech
  • freedom of expression
  • use of statistics in the law

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