Chapter 1 Introduction
Freedom of Expression
1. Freedom of expression is a fundamental and essential human right. It features prominently in the Universal Declaration of Human Rights ( UDHR) and the European Convention on Human Rights ( ECHR):
"Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers." (Article 19 of the UDHR)
" Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises" (Article 10(1) of the ECHR)
2. The Scottish Government is committed to the protection of this freedom, which is crucial for open, democratic societies. 2
3. At the same time, there has long been an appreciation that freedom of expression is not an absolute right: there are countervailing rights to be weighed alongside it:
"No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks." (Article 12 of the UDHR)
"In the exercise of his rights and freedoms, everyone shall be subject only to such limitations as are determined by law solely for the purpose of securing due recognition and respect for the rights and freedoms of others and of meeting the just requirements of morality, public order and the general welfare in a democratic society." (Article 29(2) of the UDHR)
"Everyone has the right to respect for his private and family life, his home and his correspondence." (Article 8(1) of the ECHR)
"The exercise of these [article 10(1)] freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary." (Article 10(2) of the ECHR)
Countervailing Rights: the law of defamation
4. The established law on defamation is a reflection of the appreciation of the validity of such countervailing rights, specifically as regards individual reputations.
5. In principle, this law provides all individuals with a degree of protection and redress against derogatory false statements being made about them. By restricting the scope for false statements about individuals, it may also help to provide society with a degree of protection against being misinformed, misled and manipulated.
6. 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. 3 When a person dies, the protection offered by the law on defamation dies too. 4
7. 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.
8. And, taking account of the key legal principle that a right to redress should be predicated on Damnum Injuria Datum ( i.e. loss wrongfully caused), the absence of loss seems inevitably to suggest an absence of a right to redress.
Countervailing Rights: other protections
9. In terms of the law, defamation does not offer the only protection against the dissemination of unfounded allegations about an individual. It has been observed, however, that the law as regards other forms of verbal injury has a "declining role" in the protection of personality rights 5.
10. Additional protections are also in place in relation to what may be reported in the media. These have evolved over recent decades and now include:
- Ofcom, which is an independent organisation, established under the Communications Act 2003 and also underpinned by the Broadcasting Acts of 1990 and 1996, with responsibility for regulating the UK's broadcasting, telecommunications and wireless communications sectors. This includes:
- ensuring that people are protected from being treated unfairly in television and radio programmes, and from having their privacy invaded; and
- considering complaints about infringements in line with the Broadcasting Code.
Although the BBC has its own complaints procedure for radio and television programmes, Ofcom will deal with complaints made to them about BBC issues except impartiality, inaccuracy and some commercial issues: these remain the responsibility of the BBC Trust.
- the Press Complaints Commission ( PCC), which is an independent self-regulatory body, established on a non-statutory basis, with responsibility for enforcing the Editor's Code of Practice. The PCC deals with complaints about the editorial content of most UK newspapers, magazines and their websites, in line with the Code. The PCC requires that any publication judged to have breached the Code must print the adjudication in full and with due prominence. 6
11 Again, it is important that the protections offered by such mechanisms are effective, without eroding unacceptably the fundamental right of freedom of expression.
12. Modern liberal democracies take a range of approaches to the recognition of personality rights and, in particular, to the status of the deceased and their reputations. 7 In countries with a legal tradition similar to that of our own, the exclusion of deceased persons from the protection of the law on defamation is widespread. However, though widespread, it is not unquestioned. From time to time it has been reviewed and found wanting in various jurisdictions, for example:
in 1977 a report published by the New Zealand Committee on Defamation included a recommendation that a new cause of action should be introduced, exercisable by the estate of the deceased;
in 1979 a report published by the Australian Law Reform Commission included a recommendation that there should be a right of action in relation to deceased persons, with the qualification that it should (a) be available only where publication is made within 3 years of death and (b) be possible only to obtain a correction, declaratory order or injunction;
in 1991 a report published by the Irish Law Reform Commission included a recommendation that " there should be a new cause of action in respect of defamatory statements made about a person who is dead at the time of publication… the right to institute such proceedings should be vested solely in the personal representative of the deceased who should, however, be under a statutory obligation to consult the immediate family of the deceased, i.e. spouse, children, parents, brothers and sisters, before the proceedings are instituted… the period of limitation within which proceedings must be instituted should be 3 years from the date of death of the allegedly defamed person… the only remedy available should be a declaratory order and, where appropriate, an injunction"; and
in 1994 a draft Defamation Act published by the Uniform Law Conference of Canada ( ULCC) included provision for relatives to have a right of action where a deceased person is defamed within 3 years of death.
At the time of writing, it is understood that these recommendations have not been enacted in any of these countries. 8,9
13. In contrast, the issue has not recently been subject to thorough review in Scotland. It was touched on some 35 years ago, when a Committee under Mr Justice Faulks undertook a root-and-branch review of the law of defamation throughout Great Britain. By majority, the Committee did recommend introducing provision for near relatives to sue in respect of a defamation of a deceased person published after death. However, this recommendation was restricted to England and Wales (and again was not enacted 10). The Faulks Committee's report explicitly argued that the provision should not apply in Scotland: rather than stemming from considerations of legal principle, this appears to have been a pragmatic response to a perception that, while defamation actions (in respect of the living) remained quite familiar south of the border, they had become something of a rarity in Scotland.
14. More recently, in November 2006, the Home Office, Scottish Executive and Northern Ireland Office published a joint consultation paper on criminal memoirs, Making Sure That Crime Doesn't Pay. That paper referred to the views of the families of victims of homicide and their concern not just about preventing criminals profiting from publications about their crimes 11, but about the fact that they may paint a defamatory picture of the victim. It went on to state that " … the issue of defamation of homicide victims is not discussed in this consultation but it remains under consideration separately with a view to possible consultation in the context of other work on defamation…"
A Scottish Perspective
15. The potential for defamatory material to cause distress and a sense of injustice for relatives and associates of the deceased is a powerful consideration in any country, as is the scope for the public to be misled. In addition, a number of factors suggest that this issue should now be reviewed from a Scottish perspective. These include: the apparent lack of recent attention to defamation law in Scotland; the fact that several authoritative reviews of defamation law in similar jurisdictions have recommended that there should be provision as regards the deceased; the IT-driven transformation of the publication and communications environment; the European Convention-based evolution of privacy law; the evolution and experience of mechanisms dealing with media regulation; and the attention that the Public Petitions Committee of the Scottish Parliament has devoted to the issue. 12
16. Against that background, this paper sets out for consideration some of the key issues relating to the protections available in Scotland for a deceased person's reputation. It considers whether it might be possible to provide a remedy for relatives, who currently are unable to bring a defamation action on behalf of a deceased person. It seeks views in principle on whether the law should be extended to allow them to bring an action for defamation and, if so, how any new provisions might work in practice. It also seeks views on whether there is merit in a non-legislative approach - either in addition, or as an alternative to a legislative approach - to increase the value of relevant regulatory codes.
17. This consultation is being conducted in line with the Scottish Government's 'consultation good practice guidance', which is available at: www.scotland.gov.uk/Resource/Doc/160377/0079069.pdf.
18. Views are sought in principle on the issues. Should any change in the law be considered appropriate in the light of consultation responses, further consultation will take place and an Impact Assessment will be prepared. If you disagree with this approach you are invited to send your reasons as part of your overall response to this paper.
19. Responses are welcomed from anyone with an interest in or views on the subject covered by this paper.