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.