In the view of Charles Caleb Colton, “The two most precious things this side of the grave are our reputation and our life.”
But what about the other side of the grave? The press is currently replete with comment on the recent allegations about the late Jimmy Savile. There are of course many disturbing facets to both the allegations and the details emerging about the responses to them when they were originally made. But the affair also has resonance for lawyers who are interested in what protection the law does, should and could give to the reputations of the dead or what rights might be given, and to whom, when the dead are defamed.
The reason for the flurry now may seem clear:
"As any good journalist knows, the dead can't sue – that's why it's now safe for everyone to say they knew Jimmy Savile was up to no good in the 1970s and he can't touch anyone for writing it. It's also one of the reasons why now – rather than 40 years ago – the endless revelations about him are churning out of Britain's media industry quicker than people can turn off Channel 4's Hotel GB."
In a number of ways, though, the legal position is not as clear-cut as you might think.
In the first place, of course, the dead can sue. Or at least, their representatives who are tasked with administering their estate (in Scotland, their executors) can sue. Not only can they sue but they have a duty to sue if that is what it takes to ingather the assets which comprise the estate. If you are due money to someone the debt is not written off just because they die.
It appears that English law does provide what to Scottish eyes seems an odd outcome in relation to claims for damages for defamation where the cause of action accrues before death. The Law Reform (Miscellaneous Provisions) Act 1934 provides, at s1 :
"1 Effect of death on certain causes of action.
(1) Subject to the provisions of this section, on the death of any person after the commencement of this Act all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate. Provided that this subsection shall not apply to causes of action for defamation."
So, in England, “the death of a claimant even a day before a libel action goes to court brings the action to a halt.” That is not the position in Scotland to which the 1934 Act does not extend. If a person has suffered patrimonial (financial) loss as a result of defamation of character then the claim for reparation for that is an asset belonging to his estate which his executors can, and perhaps must, realise by raising or continuing with appropriate court action. (And as an aside, the same is the true in England as regards any action based on malicious falsehood). Similarly, the liability of a defamer does not die with him: his estate remains liable to a claim by a living pursuer.
Of course, though, none of this is really what is meant when people talk about defaming the dead. What is being talked about is the defamation of those who have died, post-mortem. And here, it is true, the law in Scotland is quite clear:
“When a person dies, the protection offered by the law on defamation dies too…Essentially, the law on defamation proceeds on the basis that when people die, they are beyond harm and beyond help. A deceased person’s own feelings cannot be hurt by subsequent false allegations about failings in his or her character; his or her own earning potential cannot be compromised by subsequent false allegations about incompetence etc.
It is a long-understood principle of the common law that a deceased person cannot be defamed, because reputation is personal. A defamatory statement about a deceased person therefore does not give rise to a civil action for defamation on behalf of his or her estate.”
The decision in Broom v Ritchie (1904) 6 F 942 suggested that Scots law might recognise a claim by living relatives for upset caused to them by defamation of the deceased. Lord Young said:
“I am of opinion that the widow and the children of a dead man whose character has been defamed are not only interested to clear the character, but it is their duty to take such measures as are necessary to clear the character and to seek solatium for the injury done to their own feelings.”
This is an isolated case, though, and does not appear to represent the current law. The only circumstance in which posthumous defamation might allow a legal claim to be made by the living is where the words used involve an imputation against their characters too. For example, Michael Parkinson received an extra-judicial settlement of £25,000 from the Daily Mail which had claimed that he had lied when he said that his father was honest. The broadcast and print media also do have obligations to be fair and respect privacy in terms Codes of Practice supervised by Ofcom and the Press Complaints Commission so the living may have some remedies. It’s just that the law of defamation doesn’t provide them. Brutally put:
“defamation law is about protecting reputation, and the dead have none.”
Now, some view this as quite wrong. 35 years ago, the Faulks Committee recommended changing the law to allow near relatives a right of action for posthumous defamation. This was recommended only for England and Wales (it being felt that the scarcity of defamation actions in Scotland meant there was nothing to be gained by making the change there) but there was no enacting legislation: in 1991 the Supreme Court Procedure Committee chaired by Lord Justice Neill concluded that the balance of argument was against introducing such a right in England and Wales.
The question has been given consideration in other jurisdictions too. The Draft Commonwealth Bill for an Unfair Publication Act, produced by Australian Law Reform Commission, proposed the following:
"Defamation of deceased individual
11. (1) Where defamatory matter concerning an individual is published within the period of 3 years immediately after the death of the individual, the personal representative of the deceased or the surviving spouse, parent, child, brother or sister of the deceased has a right of action against each publisher of the defamatory matter.
(2) Damages shall not be awarded in an action instituted pursuant to subsection (1).
(3) Where more than one person institutes a defamation action pursuant to sub-section (1) in respect of the publication of the same defamatory matter, the Court shall make such order for transfer, removal, stay or consolidation as is necessary to avoid multiplicity of actions.
(4) Where a defamation action instituted under sub-section (1) in respect of the publication of defamatory matter has been determined by a Court, no further action shall be instituted in respect of the same matter except with leave of the Court in which it is proposed to institute the action."
In Canada, the Draft Defamation Act, produced by Uniform Law Conference, stated:
"Defamation of deceased
3 (1) In this section, "interested person" means a person who, in the opinion of the court,
(a) has a sufficient business, family, professional or other relationship with the deceased person to bring an action in defamation with respect to the publication of alleged defamatory matter about the deceased person; and
(b) in bringing the action, is motivated primarily by a concern about the attack on the reputation of the deceased person.
(2) Where a person publishes matter in relation to a deceased person that would have constituted defamation if the deceased person had been alive, an interested person may bring an action for defamation against the publisher of the alleged defamatory matter for a declaration that the publisher has published defamatory matter regarding the deceased person and for an injunction preventing further publication of the defamatory matter.
(3) No action for damages shall be brought under this section.
(4) No action shall be brought under this section more than five years after the death of the person who was allegedly defamed.”
More recently, the Scottish Government undertook a review and reassessment. The catalyst for this was a petition by the parents of Diane Watson. Their daughter was stabbed to death in school row two decades ago. Their son then took his own life when he read a claim in a newspaper article that his sister had been a bully. The Watsons' principal concern had been to prevent killers profiting by selling their stories to the papers but the Petitions Committee was told by Victim Support Scotland that bereaved families should have a legal remedy to challenge inaccurate and defamatory reporting.
The Government’s resulting consultation paper set out the legal and policy background:
“Freedom of expression is a fundamental and essential human right… The established law on defamation is a reflection of the appreciation of the validity of such countervailing rights, specifically as regards individual reputations... [Defamation] is essentially the legal term in Scotland for what is known elsewhere as libel and slander. Scots civil law on defamation has developed through the common law over hundreds of years, periodically being supplemented by statute, for example by the Defamation Acts of 1952 and 1996. .. Broadly, the delict ( i.e. wrongdoing) of defamation occurs when a person makes a communication which contains a damaging and untrue imputation against the reputation of another person.”
A defamatory statement, so defined, is rebuttably presumed to be false. Further:
“In order to ensure that it does not limit freedom of expression more than is absolutely essential for the proper protection of countervailing rights, the law on defamation is itself subject to a number of limitations. A long-understood limitation is that it applies only to the living. When a person dies, the protection offered by the law on defamation dies too... Essentially, the law on defamation proceeds on the basis that when people die, they are beyond harm and beyond help. A deceased person's own feelings cannot be hurt by subsequent false allegations about failings in his or her character; his or her own earning potential cannot be compromised by subsequent false allegations about incompetence etc.
It is a long-understood principle of the common law that a deceased person cannot be defamed, because reputation is personal. A defamatory statement about a deceased person therefore does not give rise to a civil action for defamation on behalf of his or her estate. Relatives and associates of the deceased also have no right of action, unless the words used reflect on their own reputations. This reflects the central principle in civil proceedings generally that a claim for damages can only be brought by the person who has suffered the injury, loss or (as in this case) harm to his or her reputation as a result of the act or omission of another person”
“Against this general background, this paper focuses on one issue, discussing possible legislative and non-legislative approaches to the provision of a remedy for the families of the deceased, where defamatory comments are made posthumously about the deceased”.
The Government clearly had sympathy with the appalling experiences of families like the Watsons but the specific propositions on which it sought responses were informed by an appreciation of the tensions and competing interests and considerations touched on in the introduction. It referred to the comments of the Australian Attorney General to the effect that:
“three main arguments have been advanced against proposals to introduce an action for defamation of the dead: first, defamation law is about protecting reputation, and the dead have none; secondly, the death of the person defamed makes it impossible for defendants to establish truth through cross-examination; and thirdly, a new cause of action would inhibit contemporary historical writing.”
It felt that:
“These arguments need to be considered in Scotland too. Additionally, there may be other objections which should be taken into consideration. Significant amongst these would be concern about any potentially detrimental impact on journalism, the media and publishing industries, through the creation of the possibility of additional litigation and associated costs. It may also mean that greater caution might be exercised by these industries in handling potentially defamatory material, and this could have an impact on commercial decisions.
Conceivably, it may also have a detrimental impact in other areas. For instance, it may be possible to envisage circumstances in which a police investigation into a suspicious death could be hindered, because fear of being sued might cause the media to elect not to publish the sort of speculative articles that could stimulate useful information and leads for the police.”
And we then got a clue to the approach that would be suggested as a possible way to resolve, or at least accommodate, the tensions when it was observed that:
“the provision of a right to take civil action would appear to have relatively limited implications for freedom of expression, if that right were tightly constrained by being available only in quite limited circumstances involving defamatory material.”
The circumstances envisaged were very much the kind faced by the Watson family. The paper asked, amongst other things:
“If the law were to be extended, would it be preferable and practical to limit that extension only to defamation of people who had died in defined circumstances ( e.g. any or all of the following: the victims of murder; of culpable homicide; of dangerous driving; of warfare; of suicide)?
If the law were to be extended, would it be preferable and practical to limit that extension only to allow actions against alleged defamers who had actually been convicted of causing the deceased's death?
Do you consider that the categories of relevant party entitled to bring an action for defamation should reflect the "immediate family" as listed at paragraph 20 above? If not, what categories of relative or other person should be able to bring an action?”
It also considered the possibility of non-legislative remedies, by reference to the Ofcom Code and the Press Complaints Commission.
Responses were invited from a number of individuals and organisations, including the BBC, Sky, ITV, the Association of Chief Police Officers, a number of universities and academics, the Newspaper Publishers Association, the Samaritans, the Scottish Law Commission, Victim Support Scotland and others. In the event, the respondents included the BBC, the Press Association, the Guardian, the Law Society and a number of individuals and academics. They were, as the Government observed, in disagreement as to whether or not there was a fundamental gap in the law that needed filling. The Government’s Summary of Responses noted that, despite being asked to do so, few of the respondents had produced evidence to support their arguments. Perhaps predictably, “Responses received from individuals and victims' organisations indicated that the law was deficient and required to be addressed” whilst “other responses indicated that there was no deficiency in the current system that required to be addressed.” Those opposing any change highlighted that the law of defamation was there to protect reputation and the extension proposed would be an unjustifiable restriction on free speech and historical research and analysis. Few on either side seemed to have much appetite for the compromise of limiting the right to the relatives of those who had died in a limited range of circumstances or against those who had actually caused the deceased’s death. Again, perhaps unsurprisingly, individual respondents were sceptical about the power or appetite of the industries regulatory bodies to provide a remedy.
The responses having been considered, Roseanna Cunningham, the Minister for Community Safety and Legal Affairs, wrote to the Petitions Committee at the end of last year. She said:
“In essence, responses were split between those from individual members of the public and victims' organisations (which supported a change to the law) and those from academics, lawyers and media organisations (which opposed a change to the law). The proponents and opponents of reform both argued strongly for their respective positions, but there was little by way of firm factual evidence that the current position is either demonstrably ineffective or demonstrably effective. The opponents, however, did raise a number of significant concerns regarding the practicality of a reformed approach. Amongst this group, there were a number who also argued for a wider review of the law on defamation and privacy.
At this point, our view is that it is right to support the objective of ensuring that the reputation of a recently deceased person cannot be defamed with impunity, but that an extension of the law may not be the most appropriate way of delivering the requisite protection.”
But, she made it clear that this was not an end to the matter:
“This is something of a provisional position, however, because it is relevant in considering this issue that, since the consultation was undertaken, the context has changed significantly. I refer, of course, to the revelations and allegations over the summer about phone hacking. The result of these developments is that media standards and regulation are now firmly in the spotlight and a range of inquiries have been established. Amongst these is the inquiry under Lord Justice Leveson, which was set up by the UK Government and covers amongst other matters "the culture, practices, and ethics of the press". We will want to consider carefully the outcome of that inquiry (in which, I understand, the petitioners have been designated 'core participants') and, indeed, the work being undertaken by the UK Government in order to inform our final conclusions as whether the regulatory regimes relating to the media are, or can be made, robust and reliable.”
And indeed, three weeks after that letter, and the day after Bob and Sally Dowler so memorably appeared, James and Margaret Watson gave evidence to the Leveson Inquiry into the Culture, Practice and Ethics of the Press. The statements and transcripts give full detail of the trauma suffered by the family. But further, Mrs. Watson was so moved by the false suggestion by other core participants that people such as her could always “go to law” that she submitted a supplementary witness statement. She said:
“While I am not asking Lord Justice Leveson’s Legal Team to highlight the lack of human rights families of homicide victims are forced to endure under the current defamation legislation, I feel that those who have stated "that you can always go to law if you are not satisfied with an adjudication of the PCC" be reminded that law of defamation does not apply when the victim of defamation is deceased.”
There is an idea out there that some of the reaction to the revelations about Jimmy Savile amount to revenge being extracted from the BBC for its part in Leveson. Whatever, Mrs. Watson was of course right that Leveson will not directly have any effect on how Scots law deals with defamation of the dead but the UK Government wanted the Inquiry to produce its report within 12 months and Lord Leveson said, at the conclusion of the evidence gathering in July this year, that he will “produce a report as soon as I reasonably can”. Anyone with any interest in how the law might be reformed to give some kind of help to people like the Watsons will look forward to that.