It has been reported that Scottish ministers are to consult on a reform of the law of defamation to permit claims to be brought on behalf of the dead. The consultation is set to be launched before the end of the year. A spokesman at Scotland’s Justice Department said that the Government had no view on whether a change was necessary of desirable: “We have said that we will still be a very very long way away from changing the law on this“.
In relation to the consultation a Scottish Government spokeswoman said:
“The Scottish Government remains committed to launching a consultation on the defamation of the deceased (including homicide victims) and we expect to launch the consultation paper before the end of 2010.
“These are important and sensitive issues, involving a careful balancing of fundamental rights, and we are determined to take every care to ensure that they are addressed appropriately. Scottish ministers will examine the consultation responses carefully before issuing their response to it.”
The consultation follows a long campaign by the parents of schoolgirl Diane Watson, 16, who was stabbed to death 20 years ago after a playground row at her Glasgow school. It was reported that Margaret and James Watson’s other child, 16-year-old Alan, later took his life after reading an article which alleged his sister was a bully. Mrs Watson welcomed the consultation plan, telling the Sunday Post:
“This is a welcome development, although I’m disappointed the consultation is only in Scotland. I hope this law is passed because it will finally put an end to articles being published about murder victims that are dishonest and malicious.”
The decision to consult on this issue has been criticised on the Absolvitor website which suggests that it would only ever be the estates of very wealthy dead people who would be in a position to bring such action and take advantage of any change in the law.
It seems unlikely that similar proposals will be considered in England. A spokesman at the Ministry of Justice said:
“The Government is carrying out a review of defamation law, and is considering Mr and Mrs Watson’s concerns. However there are a number of legal and practical issues in allowing the families of deceased homicide victims to sue for defamation, and we have no current plans to extend the law in this area.”
The rule against the bringing of libel claims be the dead has been considered on a number of occasions in England, most recently by the Neill Committee in 1991 – which recommended no change. It is interesting, however, that in 1975 the Faulks Committed recommended that there should be an action for a declaration that words used were defamatory within 5 years of death (paragraph 423(b)).
Finally, we would draw attention to the fact that it appears that claims for misuse of private information can be brought in respect of private information relating to the dead. The point was discussed by the Information Tribunal in the 2007 case of Bluck v Information Commissioner (EA/2006/0090) held that a hospital owed a continuing duty of confidence to the dead woman which was actionable by her next of kin after her death. The Information Tribunal case summary can be found here.
On your final paragraph, see also decision of the Scottish Information Commissioner in decision 165/2007 at http://bit.ly/bI22SE to the same ultimate effect as the Information Tribunal but by a rather shorter route. Incidentally, something the English haven’t yet picked up on in the current debate as to libel law reform is that our law is effectively identical at present albeit with a very different costs regime, so if the UK Parliament reforms English libel law alone we can expect to see a straightforward transfer of litigation to Edinburgh: unless, of course, the real lure has been plaintiff’s legal expenses rather than the substantive remedy. Perhaps the offering of a remedy for libelling the dead could be seen as part of this!
Defamation experts will no doubt give the age old argument that the dead cannot be hurt or defamed, what these self appointed experts seems to have ignored is defamation of innocent homicide victims published by or on behalf of convicted murderers has chilling effect on the living relatives and friends of the deceased homicide victims.
Malicious falsehoods, whether about the living or about innocent homicide victims is unacceptable in any progressive society, as such there is no justifiable reason to refuse to give families of homicide victims legal standing under the current Scottish and UK defamation legislation.
While families of innocent homicide fully endorse Article 10 of the Convention of Human Rights, we have grave concerns that we have been denied any legal standing under Section 2 of Article 10, while other EU countries has given families of the deceased the legal right to uphold the good name and reputation of the deceased under their defamation legislation.
A person’s reputation, good or bad, defines who that person is or in cases of deceased homicide victims, who that person was in life.
We have no wish to profit from taking civil action on behalf of innocent homicide victims. Our sole aim is to uphold the good name and reputation of homicide victims that have been unjustly maligned in the mass media. We would want a public apology from the offending publisher with leader on the front page of the offending publication and for that publication to pay all court cost if found culpable by the court.
With your indulgence I would like to take this opportunity to set the record straight regarding the murder of my dear daughter Diane Watson.
The murder of our dear daughter Diane, Barbara Glover, was convicted on 2 counts:
1. Unprovoked Assault on Diane on the 9 of April 1991 – 2 Murdering Diane on the 10 of April 1992, fact that most journalist have a problem reporting.
2. Murdering my dear daughter by stabbing during morning recess in Whitehill Secondary
A direct quote from a letter sent to me from the Trial Judge, Lord McCluskey dated 14 01 2001.
“In the first place, I formed the view that your daughter was a delightful, happy, intelligent, well mannered and well brought up, girl. Her murder was an unmitigated tragedy for you, for her family, including Alan and for society in which she lived. I have never expressed any different view.
In the second place, I have never expressed any views in public about Barbara Glover. As a judge I had to write a Report after a murder conviction in any case before me. I have written or said nothing else about her. I have never referred to her as a victim. I did not write an article for the Daily Record. The article to which you refer was written by a journalist following an interview with me. She asked about the murder of your daughter; but I took the view that it would not be proper for me to speak to in relation to that case, or any other case which had resulted in the continuing imprisonment of the convicted person. Any reference to your daughter’s murder or to Barbara Glover was written by the journalist without any assistance from me. I did say to the journalist who interviewed me that, in some cases, the persons who commit crimes have themselves been victims. I did not say that Barbara Glover; I repeat that I said nothing whatsoever about her to the journalist.
The journalist herself, or perhaps the sub-editor, chose to place my observation about some assailants in the same sentence as the potentially misleading statement. I have never at any time suggested to anyone that these considerations have any bearing upon the murder of your lovely daughter. I regret if the Daily Record piece, which I did not write and which contained material not inserted by me, led you to think otherwise, and so cause you such distress. I will continue to express no views about this target case or its tragic case or its consequences. I am sorry you that you have misunderstood my position.
You have my deepest sympathy in your double tragedy.
Margaret Watson.