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.