You can’t libel the dead, can you?

The old journalists’ saying, “You can’t libel the dead” may have to be qualified with “except if you live in Scotland” if a consultation launched by the SNP government becomes law. Scottish Ministers are asking whether defamation should be reformed to allow friends and family of the dead to sue on their behalf. The move is in response to a longstanding campaign by Margaret and James Watson, whose 16-year-old son, Alan, committed suicide after reading a newspaper article that alleged his sister, who was stabbed to death in a playground row, had been a bully.

However, despite the disturbing facts of this case, rather than protect the reputation of murder victims, the expenses associated with libel ensure that it is the wealthy who would benefit from such a change to protect their good name in lifetime and beyond. Since any reform would only apply north of the border, perhaps England would have a real competitor for the title of “libel capital of the world” if it led to the likes of Michael Jackson’s estate suing in Scotland because of disparaging articles about him being downloaded in Shetland.

However, a more realistic concern is that if the dead could sue, historians and academics would be seriously undermined and less likely to publish critical works on — or even research — historical figures. The potential cost of defending your claim makes it a gamble not worth taking. Thus the proposal increases the likelihood of an incomplete historical record. History may be written by the victor, but such a change would ensure that it is only the rich and powerful who are victorious.

A government spokesman refused to commit on the merits of the suggestion, saying that “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” but adding that a change in the law remained “a very, very long way away”.

Scientists, comedians, broadcasters and journalists have been at the forefront of the Libel Reform Campaign because of the ability of such laws to inhibit them from carrying out their work. If this proposal gets off the ground expect historians to add to this growing list of professions disgruntled by our over bearing libel laws. Please form an orderly queue.

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6 Comments

  1. Posted 05Feb11 at 5:12 pm | Permalink
    Margaret Watson

    With your indulgence I would like to take this opportunity to set the record straight regarding the murder of my dear daughter Diane Watson. The murder of our dear daughter, Barbara Glover, was convicted on 2 counts:

    Count 1. Unprovoked Assault on Diane on the 9 of April 1991. Count 2. Murdering Diane on the 10 of April 1992, 2.Murdering my dear daughter by stabbing Diane during morning recess in Whitehill Secondary School. A fact that most journalist have a problem reporting.

    A direct quote from a letter sent to me from the Trial Judge, Lord McCluskey dated 14 01 2001.

    Dear Mr and Mrs Watson

    “In the first place, I formed the view that your daughter was a delightful, happy, intelligent, well mannered and well brought up, girl. Her murder was an unmitigated tragedy for you, for her family, including Alan and for society in which she lived. I have never expressed any different view.

    In the second place, I have never expressed any views in public about Barbara Glover. As a judge I had to write a Report after a murder conviction in any case before me. I have written or said nothing else about her. I have never referred to her as a victim. I did not write an article for the Daily Record. The article to which you refer was written by a journalist following an interview with me. She asked about the murder of your daughter; but I took the view that it would not be proper for me to speak to in relation to that case, or any other case which had resulted in the continuing imprisonment of the convicted person. Any reference to your daughter’s murder or to Barbara Glover was written by the journalist without any assistance from me.

    I did say to the journalist who interviewed me that, in some cases, the persons who commit crimes have themselves been victims. I did not say that Barbara Glover; I repeat that I said nothing whatsoever about her to the journalist. The journalist herself, or perhaps the sub-editor, chose to place my observation about some assailants in the same sentence as the potentially misleading statement.

    I have never at any time suggested to anyone that these considerations have any bearing upon the murder of your lovely daughter. I regret if the Daily Record piece, which I did not write and which contained material not inserted by me, led you to think otherwise, and so cause you such distress. I will continue to express no views about this target case or its tragic case or its consequences. I am sorry you that you have misunderstood my position.

    You have my deepest sympathy in your double tragedy.

    Lord McCluskey

    Malcolm Speed, Managing Editor of the Sunday Mail Newspaper letter to the Press Complaints Commission dated the 12 September 2003 in response to our complaint regarding the Sunday Mail deeply offensive article published on the 10 of August 2003 which was clearly designed to mislead its readers into believing Glover was being bullied by our daughter Diane. Please take note of how Mr Speed tried to justify the Sunday Mail’s twisted article.

    Dear Mr Carter PPC

    Thank you for your letter of the 9 of September regarding a complaint by Mrs Margaret Watson concerning the murderer of her daughter, Barbara Glover.
    What are the facts on this matter?

    The Sunday Mail published an article which stated that children who are the victims of crime are seven time more likely to become criminals themselves. The article also stated that research has revealed that children who have subject to violence, intimidation or abuse are far more likely to turn into offenders.

    To highlight this, the paper published a photograph of Barbara Glover and Mary Bell. Barbara Glover stabbed Diane Watson in Whitehill Secondary School. Dennistoun, Glasgow and was ordered by Lord McCluskey, an eminent High Court Judge, without limit of time. She was released in 200.

    While detained she wrote letters she was bullied while at school. She also claimed she was provoked. During her trial Lord McCluskey said Barbara Glover was not bullied by Diane and he ruled out any provocation.

    The use of Barbara Glover’s photograph and her claims were justified as Glover believes herself to be a victim.

    Malcolm Speed
    Managing Editor.

  2. Posted 05Feb11 at 9:29 pm | Permalink
    Margaret Watson

    Dear David

    I can assure you our family is right at the bottom of the pile of the food chain you made reference too. We like you have grave concerns about cost involved in taking a defamation action not just in Scotland but throughout the UK. I wholeheartedly indorse your statement that something has to done about making civil action for defamation more affordable to everyone throughout the UK.

    I strongly disagree with your assertion that families of innocent homicide victims should be denied any legal right to formally challenge malicious falsehoods disseminated in the mass media about a much loved and deeply missed member of their family.

    I would like to take this opportunity to clarify my position of defamation of innocent homicide victims:

    1. There is no question off families of innocent homicide victims profiting from taking civil action on behalf the deceased. In fact we find that assertion deeply offensive.
    2. We must have legal standing to uphold the good name and reputation of our murdered love one, when irresponsible publishers abuse the fact that families of homicide have no legal standing under Scottish defamation legislation. As I am sure you know only too well irresponsible publishers can and I am sad to say, do publish malicious falsehoods about the deceased with impunity under the current Scottish and UK defamation legislation. That fact clearly does not concern you, but perhaps if you took a moment to reflect on the added pain and anguish such publication have on families of innocent homicide victims, you may not be so quick to condemn any possible defamation of the deceased legislation being put in place.
    3. We would only pursue a civil action on behalf of the deceased when all else fail i.e. the publisher of the malicious falsehood refuses to look over our all our evidence.
    4. To put an end to further malicious publication going to press.

    What do we want if our civil action is successful?

    1. We would hope the court would direct the publishers involved to publish a full apology, with a leader on the front page.
    2. The court would put in place an injunction on the offending publication not to publish false information about the homicide victim involved.
    3. There would be time limit imposed on taking defamation of the deceased action.
    4. If defamation of the deceased action is successful, the publisher must pay for any legal advice that families of homicide victims may incur.
    5. It goes without saying that families of homicide victims would have to be sure that they are on firm ground before taking defamation of the deceased action, as they are more than aware if their defamation action fails, the mass media would have a field day.

    It seems to me that you are more than happy to condone malicious falsehoods being disseminated in that mass media about truly innocent homicide victims.

    You mentioned how defamation of the deceased would affect scientist, comedians, broadcasters, journalist and historians. If any of the aforementioned individuals should publish malicious falsehoods about an innocent homicide victim, then yes, they must be held accountable. What makes you think it is perfectly acceptable for these individuals to published malicious falsehoods about the decease with impunity.

  3. Posted 12Feb11 at 12:49 pm | Permalink
    David Paton

    Margaret,

    Thank you for your comments. First of all I cannot possibly imagine the pain and suffering that is felt when your own child is murdered never mind the additional anguish caused by having papers question your daughter’s standing. You have my deepest sympathies.

    However, I do not think that additional laws provide a satisfactory solution. Laws should not be driven by emotional personal circumstances. Laws should not be used to protect people from hurtful feelings. The appropriateness of a law should be judged on the basis of an objective principle and not the subjectivity of one, admittedly tragic, incident.

    Although offering no comfort in the present circumstance, as a general rule, people tend to be portrayed favourably in the press in the immediate aftermath of their death. Often this is an overly romanticised memory of the deceased out of respect.

    I agree that the non-legal mechanisms, such as the PCC Code, have failed to provide effective redress. As you may already know, a Parliamentary Committee recently described it as ‘toothless’. Given this, it may be tempting to look to the law to provide a remedy. However, I believe that genuine reform of the self-regulatory system, is the way forward. I absolutely think that you should be given the right to reply. I am a firm advocate of the theory that words should be fought with more words. In the event that what a certain sector of the media says is untrue then other sectors of the media and the individuals affected should absolutely have the right to speak back. The consequence is not silence through legal means and high costs but perhaps an even greater punishment – ridicule and contempt by the public if what they say really is unjust.

    I feel the need to repeat the sentiment of my original post. Defamation laws are already far too severe. Publishers are often reluctant to print stories they believe to be truth whilst a person is alive because of the threat to expensive and protracted litigation. However, at least this chill can be tempered by some comfort that the truth will eventually emerge once the person dies. If the threat of libel persists after death then the fear is that the truth will be silenced not just temporarily but forever. The example of media tycoon Robert Maxwell comes to mind. He was notoriously litigious and successfully managed to deflect much warranted criticising during his lifetime through the use of libel laws. Many revelations only came to light after his death. If his family could continue to sue after his death who knows if these truths would be known today.

    Those who do not deserve a reputation will be able to maintain their false image beyond the grave. Historical record will be inaccurate. There may be exceptions to this rule. It may mean in individual cases families of the deceased may have to endure even harsher treatment but as a principle society as a whole would be damaged by the alternative.

    Unfortunately, the fear is that if you were able to defame the dead then this would provide an incentive to those who wish to silence opinions, comments and fact far beyond the circumstances of your own particular case. This is why that such a law is not the answer.

  4. Posted 04Mar11 at 4:27 pm | Permalink
    Margaret Watson

    Dear David
    Thank you for replying to my justifiable concerns on the lack of legal standing given to families of innocent homicide victims under the current Scottish and UK Defamation legislation. I apologise for the delay in responding to your comments as I was not aware you had responded to my comments until now.

    I read your comments on defamation of the deceased and your concerns on the need to reform the PCC with great interest, but I must confess I am deeply disappointed, given your great wisdom on defamation legislation, why you have not proposed a detailed alternative to the PCC. It is easy for you and others to state the PCC is toothless, I have stated that fact on several occasions. Unlike you I don’t claim to be an expert on defamation legislation, I am just a simple mother whose much loved 16-year-old daughter was brutally murdered during morning recess in the school playground, but then if you had bothered to read response to your post properly would have known that.

    May I ask you, have you read and understood any of the small part of my evidence posted on your blog? If you have then how can you state that we as the parents of an innocent homicide victim will just have to live with the malicious falsehoods published on behalf of the convicted murderer of our much loved daughter? I trust you will forgive me for being so emotional about my dear daughter.

    Can you please explain to me your statement we must not question historical publication, when we all now know there were “no weapons of mass destruction” in Iraq, or do think that statement should stand as fact and never challenged?

    Then you may wish to consider if you can be bothered that is, defamation of the Jews by Adolf Hitler during the second world was, should his statements on the Jewish people still stand as fact in the history books? If you should agree that the aforementioned historical statements are false and must be challenged then please explain to me why you have the audacity to state families of homicide victims will just have to live with their murdered relative good name and reputation being unjustly called into question by or on behalf of convicted murderers?

    You also stated that we must not allow emotions to dictate our defamation legislation. We all I can say to that, if we were all as devoid of human emotions and empathy as you clearly are, there would be no defamation laws and we would all be free to publish lies about each other with impunity, which says a lot about your lack of integrity as human being.
    I truly hope I am wrong in my assessment of you as person, but going by your complete lack of insight and understand on this particular subject matter, sadly I don’t believe I am.

    I feel it may benefit both of us if we have a proper conversation if you should be interested you can get my contact details from your associates at English Pen or from Lord Lester who unlike you did not see fit to reply to my numerous letter on defamation of the deceased.

  5. Posted 22Nov11 at 3:45 pm | Permalink
    Sammy Mendel

    I think an attack on a deceased love one is far more damaging than any attack that can be made on oneself, but however libel is too far. Where attacks on the dead have been made, for example with South Park and Steve Irwin, the offenders have suffered greatly in public opinion. I think that this is a proper outcome without bringing damage payments into it.

    I think the comments about Iraq and the Holocaust are misguided because no history book presents Hitler’s views as fact, and the WMD story is also widely accepted as being false. In fact these are very good examples of how public opinion is itself the most powerful tool in justice for the dead, whether holocaust victim or Iraqi civilian.

    Finally, there is a certain irony in how the debate is about freedom from personal attacks and yet you accused David of being without emotion, empathy or integrity. That is mot the case: you are concerned with justice for your daughter, and I hope that one way or another you get it, but David is concerned with justice for all. The moment we start letting victims’ families decide the law is the moment we start bringing back capital punishment: the legislation passed by Hitler before the holocaust has shown us with resounding clarity that high emotion and the justice system must never mix.

  6. Posted 25Jan12 at 12:07 am | Permalink
    Margaret Watson

    Dear Mr Mendel

    Please accept my apology for the delay in responding to your comments on defamation of the deceased.

    With respect you seem to have misunderstood my position on defamation of the deceased and I would like to take this opportunity to clarify any misunderstanding that you may have on families of the deceased taking civil defamation of the deceased action.

    1.Families of the deceased would not be allowed profit from any successful defamation of the deceased action.
    2.Families of the deceased sole aim would be to seek a public apology for malicious falsehoods published by irresponsible journalist and their editors about deceased victims of crimes, not I repeat, families of murdered victims would not be allowed to profit from taking civil defamation action on behalf of deceased victims of crime. In fact I find that assertion reprehensible.
    3.I fully endorse your statement that you public opinion is a powerful tool but I trust you will agree that in order to form an opinion on an individual or event one has to be in possession of all the facts before one can give an informed opinion especially if that opinion is disseminated in the mass media.
    4.I make no apologies for highlighting the malicious falsehoods published about my murdered daughter and the deadly affect those spurious articles had on my son, but I can assure you that many families of murdered victims have affected by false information being published about their deceased love one.
    5.As much as I try I cannot understand why you or anyone else have closed your minds to the added misery and heartache defamation of innocent murdered victims has on families of the deceased victim. We as family will do all within our very limited power to end this injustice in clear knowledge that we are up against powerful and influential organisations such as English Pen and Index and various other powerful legal experts.
    6.I fully accept you critical comments regarding my efforts to get my point across to Mr Paton however I would have thought you would have taken into account Mr Paton’s statement that it is inevitable that families of the deceased may have to endure harsh treatment at the hands of irresponsible publishers (my words not Mr Paton’s) would cause you some concern. I am more than willing to discuss these issues with Mr Paton sadly Mr Paton has not responded to offer to discuss defamation of the deceased.

    I can only trust you will not take offence to my efforts to clarify my concerns on the lack of legal standing given to families of the deceased under UK and Scottish Defamation legislation.

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