Operation Yewtree: defaming the dead?

Traditionally, as the Latin saying has it, de mortuis nihil nisi bonum (roughly translated: ‘thou shalt not speak ill of the dead’). But common-law jurisdictions have never recognised a law against defaming the dead. Defamation is a cause of action personal to the individual, which dies when he does. Should the law be changed?

The issue used to arise in homicide trials, when an accused sought to traduce the victim, causing bereaved families to complain. The press may also publish scandalous revelations about a murder victim. More recently, however, the issue has come up in the light of sensational accusations of historic child-sex abuse against Jimmy Savile, and now Cyril Smith.

None of what is being said here should be taken to deny or minimise the fact that child abuse is a very serious social problem, albeit one which usually occurs within families. The point of this article is: should serious allegations of abuse be made against the dead with total impunity, or should the law afford some means of protection?

The current problem

Recent scandals about historic abuse accusations against deceased men have typically led to a media-feeding frenzy, with lurid accounts in TV documentaries and newspapers, often alleging paedophilic abuse. They come with a Greek chorus of activists and campaigning charities demanding justice for ‘victims’ or, more accurately, complainants.

The result is a veritable tsunami of blame, engulfing every institution with which the deceased had dealings, each of which is targeted by claimant lawyers looking for compensation. Undeniably, the money motive looms large in these historic sex scandals.

When such a scandal breaks, and damaging accusations are made about a deceased, the dead man’s family faces an acute dilemma. Should they bow their heads in shame and seek to placate public opinion, or demand some impartial inquiry to get to the bottom of it all? At present, they have no legal rights at all.

The Scottish consultation

In 2011, the Scottish government conducted a public consultation, titled Death of a Good Name: Defamation and the Deceased, which looked at the competing arguments.

The basic argument against extending the law on defamation to dead people is simply that the dead cannot be harmed. The Scottish government’s consultation noted that Ofcom and the Press Complaints Commission offer some measure of protection against unfair or misleading reporting. However, as any media lawyer will tell you, these regulatory regimes are pretty toothless in practice.

The Scottish consultation makes only passing references to historical accusations of child-sexual abuse. Conceivably, the Scottish legal system may not have experienced quite the same explosion of historic abuse scandals as in England, Wales or Ireland since the early 1990s. Rather, the focus seems to be on the families of homicide victims.

It is interesting that in New Zealand (1977), Australia (1979) and Ireland (1991), the respective law commissions in those countries all recommended a new cause of action to protect the estates of deceased people from defamation. In 1976, a committee chaired by Justice Faulks recommended such a cause of action in England and Wales. So did Canada in 1994.

But in 1991, a Supreme Court Procedure Committee of England and Wales, chaired by Lord Justice Neill, looked at the issue again. It concluded that there were insurmountable difficulties involved in establishing the truth, such as: obtaining documents; the limitation period; and the fact that the person hurt is no longer alive. Therefore, the committee rejected Justice Faulks’ earlier proposal.

Other arguments, ventilated by Australia’s attorney general in 2004, include the suggestion that such a law ‘would inhibit contemporary historical writing’, and that, since cross-examination of the deceased is an impossibility, it would be impossible for defendants to get at the truth.

The Scottish consultation also voices concern about ‘creating a potentially open-ended liability’ in respect of actions ‘brought decades after the death of the allegedly defamed person. This could create significant difficulties for publishers and others…’

Ironically, however, when defendants accused of historical crimes have sought to raise similar objections about unfairness and problems of proof, their protests have cut little ice with judges in the past two decades. Instead, both our criminal and civil courts have opened the floodgates to allegations of historic abuse and the ensuing stream of cases now seems neverending.

Traditionally, such extremely stale claims would have been viewed as an abuse of process. They have developed as a result of legal and judicial activism.

We have even seen elderly Kenyans, who alleged abuse against them during the Mau-Mau insurrection in the 1950s, being allowed to pursue claims for assault in the High Court in 2012, over half a century later. This led to a multimillion-pound compensation deal with the British government. The courts seem indifferent to the ‘have a go’ mentality that such highly publicised rulings inevitably foster.

The Scottish response

The responses to the consultation on defamation of the dead voiced a range of views.

The media were, predictably, opposed. They referred darkly to ‘a subtle fraud on history’ and ‘judicially sponsored dishonesty’. They argued that the families of deceased persons should not be given a right ‘not to be offended by what someone has said about a loved one’.

They also complained about forum shopping in Scotland, should such a law be introduced there but not south of the border. By contrast, organisations representing victims and their families favoured a law protecting the dead and their families from defamation.

‘Death Match’: Strasbourg steps in

A little-remarked case decided by the European Court of Human Rights last November called Putistin v Ukraine (App No 16882/ 03) became final on 21 February 2014.

It addresses the issue of whether EU member states should provide a legal mechanism to prevent defamation of the dead. The applicant was the elderly son of a deceased football player. In 1942, his father participated in a legendary ‘death match’ between Ukrainian footballers and a team of German Luftwaffe. The locals defeated the Germans by five goals to three. The locals were then sent to a concentration camp, where four were executed.

In 2001, a newspaper published a story entitled ‘The truth about the death match’, which reported a plan by some filmmakers to make a film about this incident. The producer was reported as saying that other members of this football team, who were not executed, were collaborators with the Gestapo. The applicant was very upset at the implied slur on his father, though the article did not name him specifically. Instead, it reproduced the 1942 poster advertising the match which named his father as one of the players – although the reproduction of the poster in the newspaper left his father’s name illegible.

The applicant began court actions against the journalist and three other newspapers, seeking corrections and damages. One of the other newspapers was ordered to publish a correcting statement, but the remaining actions failed.

A majority of local courts found that he was not a person directly affected by the allegation, and also that his father was not specifically named. So he complained to the European Court of Human Rights, which examined his case under Article 8 of the European Convention, as a claim that his right to protection of his and his family’s reputation had been violated.

The Ukrainian government accepted that ‘the right to respect for the honour and dignity of a deceased relative was an element of the right to respect for private life guaranteed by Article 8’. However, it argued that the main action against the journalist did not involve the dissemination of untruthful information about the deceased.

The ECHR accepted that, in certain circumstances, the reputation of a deceased family member might affect a living descendant’s private life and identity, and thus come within the scope of Article 8. It noted that Article 8 does not simply require the state to abstain from arbitrary interference in private life, but may also require it to adopt positive measures designed to secure respect for private life, even in the sphere of the relations of individuals between themselves.

In this instance, the article did not name the applicant’s father directly, and was made in the context of the sixtieth anniversary of the ‘death match’, and a proposal for a film about this historical event. The court considered that the article constituted a form of participation in the cultural life of Ukraine, because it informed the public about a proposed film on a historical subject. ‘It was neither provocative nor sensationalist.’ It considered that the impact on the applicant was ‘quite remote’.

A new right for the dead?

Although the applicant did not succeed, this decision lays down an important marker. It acknowledges that, in certain circumstances, a state may be obliged to ensure effective respect for the reputations of deceased persons, and their surviving relatives, under Article 8. Clearly, the need to strike a fair balance between Article 8 rights and those of the press under Article 10 (the right to give and to receive information) will come into play, as will the issue of proportionality. However, the outline of a potentially significant new right of access to the courts to defend a deceased’s reputation can be discerned.

What might be the make-up of this new right? The following are some possible ingredients:

1) That the statement complained of makes serious accusations against the deceased, which are damaging to his reputation, eg, accusations of criminal offences;

2) That the accusations are untrue or unproven, but are presented as fact;

3) That the statement is published in an unbalanced, sensationalist, provocative and inflammatory manner, designed to foment scandal, rather than to inform public debate in a measured way about a subject of legitimate public interest;

4) That the publication and dissemination of such a statement causes surviving relatives of the deceased alarm and distress and/or exposes them to the risk of criticism, public hostility, and even reprisals.

By way of an example, consider the backlash following lurid accusations about Jimmy Savile in ITV’s heavily promoted Exposure documentary on 3 October 2012. By 8 October, his family had his headstone removed from his grave, for fear of vandalism. The hysteria generated by the media continued to escalate. Vandals targeted his holiday home in Scotland. That level of threat certainly sounds serious enough to engage a new Article 8 right, to protect the dead and their families.

Again, headlines like the Daily Express one that said ’ ‘Jimmy Savile was part of Satanic ring: Savile beat and raped a 12-year-old girl during a secret Satanic ritual in a hospital’ could not be more sensational, provocative and extreme.

That story continued: ‘Savile, who died aged 84 in October 2011, is now Britain’s worst sex offender after police revealed he preyed on at least 450 victims aged eight to 47.’ (Italics added.)

If Savile were alive, one can imagine the libel writ coming the very same day. That Express report omits to mention that Satanic ritual abuse is a myth, which was comprehensively debunked in the early 1990s. It also fails to explain how the police are arbiters of truth in historical sex claims. Savile was Catholic, and such vilification might even be said to evoke older Protestant stereotypes of Catholics as agents of the anti-Christ.

Sauce for the goose is sauce for the gander

Given that the courts now permit stale accusations of historical abuse to be pursued, even going back to the 1940s, the arguments previously mentioned against a law protecting the dead from defamation sound less convincing.

It is illogical to say that accusers should be allowed to revise history, decades after an event, while a deceased’s estate is denied any remedy on the basis that this would encourage ‘subtle historical fraud’ or ‘judicially sponsored dishonesty’. The reverse is surely the case. If historical truth is the ultimate value, then let both sides have a right of access to the courts, to get at the truth.

Barbara Hewson is a barrister. This article was written in a private capacity, and represents her personal views.