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Book Review: Reputation and Defamation

Defamation, we are told on the first page of this book, ‘suffers from a fundamental deficiency: there is no principled theoretically coherent statement of law regarding what is defamatory’. The reason for this, it continues, is that whilst it is widely acknowledged that the function of defamation is to protect reputation, insufficient attention has been paid to what reputation really is. Indeed, in the author’s view, reputation is the key point of reference against which defamation should be evaluated. ‘The question I pose’, he explains, ‘is asked in a very particular form, with the premise itself being a critical issue: if reputation is the interest to be protected by defamation law, then what should be the test(s) for what is defamatory?’ The question is answered in three parts. The first sets out a theoretical account of reputation; the second deals with the historical development of defamation; and the third, by far the longest, deals with the modern law. The first part offers an explanation of reputation ‘as a social and cultural phenomenon’, and provides the following crucial definition: ‘An individual’s reputation is a social judgment of the person based upon facts which are considered relevant by a community’ (p. 21). As becomes clear, the community’s role is crucial. This prompts an explanation of the concept of community, the essence of which is seen as shared moral values. It therefore follows that a judgement about a person’s standing ‘must inevitably be a moral judgement’ (p. 30). The discussion then moves on to consider three conceptions of reputation, as advanced in a famous article by Robert Post:1 property, honour and dignity. Property is fairly swiftly dispatched as being unsupported by case law, and as telling us nothing about such questions as how reputations are created. Honour fares better. In perhaps the best part of the book McNamara shows that the rather aristocratic idea of honour as attaching to a particular social status (as espoused by Post) is, in fact, far too narrow. Anthropological work shows that honour was central in non-aristocratic settings, particularly in the Mediterranean. This material not only revises Post’s classic exposition; it also introduces the idea of ‘moral taxonomies’, that is, ethical rules or criteria, such as honesty, courage or loyalty, which determine