You Can’t Defame the Dead – Why the Savile Case Shows Mr MacAskill Shouldn’t Change the Rules

 

Jimmy Savile, during his life, was seen as a great character, with his charitable works, support for Stoke Mandeville Hospital, dream-fulfilling TV programme, remarkable personal fashion statements, and the cigars and easily mimicked catch phrases. “This is the Age of the Train” and “Clunk Click; Every Trip” are lodged in the minds of those of us who watched TV adverts, and Public Information films, in the 1970’s and early 1980’s.

Since his death, and especially since Newsnight decided not to run an investigation into allegations against him, his reputation has been destroyed, as a result of hundreds of accusations of sexual assault and child abuse. These are subject to active police inquiries just now, as well as potential civil litigation against the BBC, the NHS and the Savile estate for injury allegedly caused by him.

During his lifetime, Mr Savile was very keen to protect his reputation, and was not an infrequent visitor to the courts to obtain orders to protect his image. As recently as 2007 the Lawyer magazine reported that he obtained an order against the Sun newspaper in relation to allegations about his personal conduct. I suspect there are many more unreported instances.The press trod very carefully as regards reports about him, even though it is now clear that the allegations against him were notorious in the media “bubble”. They did not make their way to the public domain however.

The late Robert Maxwell and Lord Archer are amongst those whose hot-line to lawyers such as the industry leading Carter-Ruck and Partners prevented stories being published about their behaviour even where, as turned out to be the case, the reports were correct.

The nature of the libel and defamation systems in the UK mean that the public rarely gets to hear about successful efforts to stop publication of stories, especially where a lawyer’s letter heads it off even before court action is raised.

The burden of proof in a defamation case is upon the accuser, rather than the “victim” of the alleged defamation. This means that the media often take a safety first stance, rather than risk a damages award and costs where they cannot sufficiently establish the story. The Tommy Sheridan case against the News of the World is a perfect example.

One of the relevant factors is the cast-iron position that one cannot defame the dead. The late Mr Maxwell was a crook. However, it took confirmation of his death in the Mediterranean for the press to be able to publish legions of true stories about his personal and business behaviour, as they were no longer faced with the risk of a civil action for damages.

In January 2011 the Scottish Government published a Consultation of the Law of Defamation as it related to dead people. It can be read here.

The introduction, by Minister Fergus Ewing, reads as follows:-

Concern for posthumous good name and reputation is not new.

It has been said that:

“The evil that men do lives after them; The good is oft interred with their bones”1

That phenomenon may be considered unfair enough. Perhaps it is worse still if what endures is not just the memory of evil for which the deceased had actually been responsible, but also evil of which they are falsely accused.

Especially for close relatives, the death of a loved one will be a source of significant pain and grief, not least if it occurs in sudden or traumatic circumstances. If the death is then followed by unfounded allegations which denigrate the character or activities of the deceased, that pain and grief is likely to be made even more acute.

If the relatives are unable to challenge such stories effectively, then – compounding everything else – they may experience feelings of helplessness and of guilt at failing to protect the good name of their lost loved one.

It is not unknown for such allegations to be published after the death of celebrities.

But potentially, the publication of such material can follow the death of any person – anyone’s mother or father, son or daughter, brother or sister – especially if the circumstances of the death are unusual or newsworthy.

The central question addressed by this consultation paper is whether additional protections – beyond those which already exist – could reasonably be developed in order to deter and, where necessary, to provide redress in response to false posthumous allegations, or whether it is right that grieving relatives should be expected to endure such allegations as part of the essential rough and tumble of a society which cherishes freedom of expression, as a price that has to be paid for the preservation of that freedom.

The issue is significant. It has been wrestled with in jurisdictions across the globe.

This consultation paper aims to ensure that the people of Scotland also have an opportunity to consider an issue which, potentially, could affect any one of us.

 

In the Scottish Government’s Legislative Memorandum to the English Defamation Bill this year, Mr MacAskill said:-

 

There has been no specific consultation on defamation law in Scotland. However, the Scottish Law Commission did undertake a consultation exercise before undertaking its current law reform programme and defamation law was not seen as a priority. The current law is considered robust enough for present purposes and the law on defamation (and the related area of privacy) has generally attracted little interest, with calls for review/reform being few and far between. (A) limited exception to this lack of interest has been:

 

Defamation of the deceased. In response to interest from the Public Petitions Committee linked to the long-running campaign of the bereaved parents of Diane and Alan Watson, the Scottish Government conducted a consultation exercise on this narrow issue. This resulted in a provisional conclusion on this issue that – pending the outcome of the Leveson Inquiry – better media regulation seemed likely to be more appropriate than reform of defamation law. A few of the respondents to that consultation exercise, however, did comment that a wider review of defamation law in Scotland may be worthwhile.

 

The Memorandum was dated June 2012.

Then on 18^th September 2012 the Justice Committee heard from Mr MacAskill again about this issue. He said:-

No. The major on-going discussions have related to defamation of the deceased, which was addressed by the Public Petitions Committee with engagement from my ministerial colleagues. Matters have been examined, but they are to some extent being held in abeyance, pending the outcome of the Leveson inquiry, given that defamation of the deceased has in many instances related to newspapers. It has been decided that we will await the outcome of the inquiry before we decide what to do thereafter. The matter has not been raised with me by the Faculty of Advocates or by the Law Society of Scotland.

So we have gone from an area where the law in Scotland seems fine, and there have been few calls for a change, to one where matters are held in abeyance pending Leveson reporting. That suggests, as did media reports last month, that Mr MacAskill is moving to the possibility of extending the rights to seek recompense for defamation to the reputations of the deceased.

The Jimmy Savile allegations show the dangers in doing so. If his estate, family or even his charity could pursue damages actions for defaming the late DJ, then would the allegations have made it into the public view at all?

As Mr MacAskill said in June, there was little reason to change the position in Scots Law. Hopefully the awful allegations about Jimmy Savile will ensure that there is no extension of the legal protections. Sometimes, but not always, it is true that “if it ain’t broke, don’t fix it!”

 

Posted by Paul McConville

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