Defamation and the Moral Community

Abstract

This paper presents the key findings of a major empirical investigation into defamation law and social attitudes. It examines the way in which the law decides whether a publication is defamatory, and the consequences for that process of a phenomenon known as the third-person effect: the tendency for individuals to perceive the adverse impact of a communication as greater on others than on themselves. It argues that, as a result of this tendency, defamation law unnecessarily and unfairly silences speech on the basis of protection to reputation, even though little or no reputational harm would actually occur. What is more, defamation law perpetuates regressive attitudes and could do more to promote a just and inclusive society.