Thatcher Leaving Downing StreetThe death of Margaret Thatcher has generated acres of commentary and reaction across all kinds of media; from Twitter to newspaper front pages to placards and banners.  The reactions have been extreme both in praise and contempt.  The negative views of Baroness Thatcher and reactions to her death have been particularly eye-catching and right wing newspaper editorials in particular have portrayed them as being inappropriate and offensive. 

But are they more than that?  To what extent could they be unlawful and actionable by her estate?  This posting does not intend to consider specific examples of what has been published about Baroness Thatcher nor what defences could be raised beyond the technical issue of whether the estate of a deceased person may ever be able to bring an action in respect of publications after death.

The issue of the right to protect the reputation of the deceased remains contentious and was a topic addressed, albeit briefly, by Lord Justice Leveson in his Inquiry.  It is an established truism that you cannot libel the dead and, as a personality right, it follows that it ends upon the death of a claimant whether or not the publication took place before or after death, or indeed whether or not the claimant died before proceedings were issued. Case law on this point dates back to the 1880s (Pulling v Great Eastern Ry (1882) 9 QBD 110) and the principle was confirmed in a case last year where a claimant died following a hearing, it was decided that no judgment should be given (Harvey Smith & Bobby Dha [2013] EWHC 838 (QB)   Thus no matter how false, or offensive the statement and how damaging to the estate of the deceased a publisher has been able to proceed without fear of a libel writ.  Malicious falsehood is sometimes proposed as an alternative basis for a claim on behalf of the deceased (as a property right it survives death) but the requirements of a claim using this tort, not least malice and proof of damage, make it rarely an adequate option.

Margaret and James Watson gave powerful evidence to the Leveson Inquiry on 22 November 2011 as part of the campaign they launched in Scotland to change this status quo. It is impossible not to have enormous sympathy for them nor ignore the force in their argument that given the impact of publishing falsities of a deceased person (in their case the publication had ultimately tragic consequences for their son, following the reporting of the murder of their daughter) the law should provide some protection.  The Hillsborough Families also submitted evidence as to the terrible falsities published about the 96 killed during that tragedy.

Lord Justice Leveson was not persuaded of the need for a change in the law, although he describes it as “an interesting idea” which “may well have positive effects” in Part F of his report (Vol II p658 para 6.15).  However, he goes on to discuss the difficulties of such a proposition using Churchill as an example (although Baroness Thatcher may be a better one) and suggests that “it is not a change in the law but a change in culture that is required” for the press to be sensitive to the feelings of the grieving in their reporting of the dead.

Of course the grieving do have remedies relating to press harassment or intrusion into grief they suffer, which Leveson does cover in detail, having heard extensive evidence from witnesses such as the Dowlers, Max Mosley and Anne Diamond who told of their bitter experience in the time of grief (Giles Crown gave similar evidence on behalf of the Bowles family).

Away from Leveson, the issue was raised in the context of the Defamation Bill.  On 19 June 2012, Helen Goodman (the Labour MP for Bishop Auckland) moved an amendment allowing a dead person’s spouse or partner, relatives, siblings or offspring to sue a publisher for defamation for up to 12 months after the death.  Goodman noted that a “vicious character assassination based on lies is often more damaging to someone after death than to a living person, because they cannot answer back”. The amendment was defeated.

In January 2011 the Scottish Government published a consultation paper on the matter, largely as a result of the determined campaigning of James and Margaret Watson. The Scottish Government Public Petitions Committee took evidence from Victim Support Scotland and press representatives, as well as asking Ofcom and the Press Complaints Commission what their guidelines were.  Its provisional conclusion was that a change in the law was not the most appropriate way of tackling the problem but that it should be considered in the context of regulatory protection.

So what is the regulatory position?  The oft criticised PCC upheld a complaint made by the Tolkien family on behalf of the recently deceased son of the author.  The family’s complaint in respect of the allegations (by way of Clauses 1 and 2 of the Editor’s Code) were upheld, as was its complaint in respect of intrusion into grief and shock (Clause 5).  Whereas the PCC found against its complaint (under Clauses 3 and 4) in respect of the publication of a photograph said to infringe the privacy of the deceased individual, reasoning that it was not possible to invade the privacy of the dead.  So inaccuracy relating to the deceased may be subject to regulatory sanction, if the PCC could be described as a regulator or had the ability to impose sanctions.

The PCC’s approach to libel and privacy relating to the deceased seems to run directly contrary to what the law may provide.  Whereas, as we have referred to above, an estate of a deceased person may not have been entitled sue for libel in relation to a falsity, it may be that they could sue for an invasion of privacy.  The law providing for the right to privacy has developed as an extension of the law of confidence and the authors of Confidentiality Toulson and Phipps argue that post death disclosures may give rise to a cause of action. It is, so far as we are aware, an untested proposition so far as an individual’s personal privacy is concerned and clearly an action for damages relating to distress and hurt feelings would not be applicable, but it is possible to conceive of circumstances where an injunction would be.  Even where the family do not have their own claims, it may well be that there would be a legitimate claim for an injunction to prevent, by way of example, private/intimate photographs or medical information being disclosed about the recently deceased. The General Medical Council wisely advises doctors to protect the privacy of deceased patients anticipating that a legal duty applies.

Furthermore in 2007 the Information Tribunal considered the point at length in respect of an appeal against the refusal of Hospital Trust to disclose medical records in response to a Freedom of Information Request served by the mother of the deceased. It concluded that the duty of confidence was capable of surviving death (Pauline Bluck v The Information Commissioner).

The relevance of this issue does not only arise for deceased Prime-Ministers.  Arguably it applies more acutely to those about whom very little has been published.  Their lifetime reputation can be destroyed by a single publication and have a devastating impact upon his or her surviving family.   Leveson did not run with this challenge despite the pleas of the Watsons, perhaps he considered it one battle too many.  The stumbling block he identifies by use of the Churchill example does not do the argument credit. It would clearly be ludicrous for libel litigation to be commenced for a very long deceased Prime-Minister about whom the public interest in debates about his life must be given enormous latitude.  Online attacks and tabloid hatchet-jobs relating to the recently deceased should not be considered in the same category.  Why should the need for truth, accuracy and privacy not remain of paramount importance at a time when reflections on a life are at their most sensitive?  It will be interesting to see how the new regulatory framework will deal with this issue because it is not going to go away.

Dominic Crossley is a Partner and Head of Defamation and Reputation Management at Collyer Bristow LLP. Aimee Stevens is a Paralegal within the team.