Lawrence McNamara, REPUTATION AND DEFAMATION Oxford: Oxford University Press (www.oup.com), 2007. xx + 254 pp. ISBN 9780199231454. £55.95.
| Pages | 168-170 |
| Author | Elspeth Reid |
| Date | 01 January 2010 |
| Published date | 01 January 2010 |
| DOI | 10.3366/E1364980909001152 |
This book had its origins in a doctoral thesis and, like all good PhDs, it sets itself a project: how do we determine what is defamatory? As the author observes (1), not only is there no “coherent statement” of the law in this area but it has become customary for those who attempt definitions to apologise for the inadequacy of their efforts (e.g. Prosser, who famously conceded that much of defamation law “makes no sense”; see
One of the first chapters provides an interesting analysis of the historical foundations of the Common Law doctrine. It explores the early treatment of defamation in the ecclesiastical courts and the local courts, showing that individual reputations were only narrowly protected in this period, in so far as necessary to keep the peace and maintain the political and moral order. For a long time, cases were determined according to restrictive “category-based” rules, and McNamara concludes that it was only in the latter part of the nineteenth century that it came to be generally agreed that the rationale for defamation was the protection of reputation in the broad sense (102). Interesting parallels may be drawn here with the early development of defamation in the Scots commissary courts and the jury court (although McNamara does not refer to John Blackie's excellent historical account, “Defamation”, in K Reid and R Zimmermann, (eds),
The main focus of the book is English and Australian case law (the thesis upon which it was based was presented at the University of Sydney), although there is also extensive reference to US writing and cases. Other jurisdictions make a brief appearance in the table of cases, but Scotland is only thinly represented. The interesting South African case law dealing with issues of moral diversity has not been noticed. The otherwise very comprehensive historical section includes mention of Cooper's
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