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Reputation and Defamation$
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Lawrence McNamara

Print publication date: 2007

Print ISBN-13: 9780199231454

Published to Oxford Scholarship Online: January 2009

DOI: 10.1093/acprof:oso/9780199231454.001.0001

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Conclusion: Re-thinking the Tests for What is Defamatory

Conclusion: Re-thinking the Tests for What is Defamatory

Chapter:
(p.229) Conclusion: Re-thinking the Tests for What is Defamatory
Source:
Reputation and Defamation
Author(s):

Lawrence McNamara

Publisher:
Oxford University Press
DOI:10.1093/acprof:oso/9780199231454.003.0010

The question this study set out to answer was: if reputation is the interest to be protected by defamation law then what should be the test(s) for what is defamatory? The stated aim was to fill a gap in the common law by providing a principled, theoretically coherent statement of law regarding what is defamatory. This chapter proposes a new legal framework that aims to meet that goal. Only the principal test for what is defamatory should be retained because it is the only one that meaningfully protects reputation. However, the common law should dispose of the traditional, exclusive presumptions that form the content of ‘the right-thinking person’ and instead use inclusive presumptions that are premised upon an acceptance of equal moral worth. Any displacement of these presumptions should be controversial. A departure from the commitment to equal moral worth should be made only with great care and caution.

Keywords:   reputation, defamation, right-thinking person, inclusion, exclusion, moral diversity, ridicule, shun and avoid, lowering the estimation

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