Potential changes to Scottish defamation laws

It is often said that you shouldn’t speak ill of the dead. From a lawyer’s point of view, this is an odd saying, as you can’t defame a dead person. Accordingly, all bets are off once a person has died.

It looks like that could soon change in Scotland though. The Scottish Government is considering changing the law so that an action for defamation can be brought after death.

This potential change in the law raises a couple of interesting issues.

  • Firstly, any proceedings could be frought with difficulties. Often, the person alleging the defamation is a key witness in any defamation proceedings, but if that person is dead then he will not be available to the court. As the onus is on the person who made the statement to show that the statement was justified, this may make it particularly difficult for the person making the statement to defend an action if the basis of the statement is a matter personal to the two parties.
  • Secondly, under Scots law, in order for a defamation action to succeed, it is also necessary to show that harm has been caused. In many instances, it is difficult to see what harm can be suffered after death and how that harm can be quantified in damages. Whilst it is possible that the estate of a well–known individual could suffer financial loss through a drop in sales, in many instances the noterietary of arising out of the accusation may actually contribute to the estate through an increased interest in that individual’s works.
  • Thirdly, it may lead to increased forum shopping, as such actions are not currently permitted in other countries that are traditionally popular for bringing defamation actions (for example, England or the USA). This may lead to an influx of cases (and business) for the Scottish courts where the statement is also published or made available in Scotland.
  • The Scottish Government plans to issue a consultation on the proposed changes by the end of this year.

2 Responses to “Potential changes to Scottish defamation laws”

  1. 1 Gavin Ward (WardblawG) November 9, 2010 at 12:27 pm

    Good post Martin. V interesting comment re forum shopping.

    I’ve researched this topic previously where a client wanted to know if he could sue on behalf of a deceased relative (who died hundreds of years ago). In doing so, I noticed quite an interesting SLT article on the subject. As it stands, there are in fact ways in which proceedings can be brought in respect of defamation of the dead. But chances are very slim.

    Personally, I think legislative amendment would be a welcome change. As you mention re quantifying loss, consider book sales. The author has copyright protection until 70 years from his/her death. If the deceased has continuing copyright protection, then why shouldn’t they get equal protection against delicts such as defamation?

    Will be interesting to see what happens

    Best wishes
    Gavin Ward

    • 2 martinsloan November 12, 2010 at 12:50 pm

      Gavin – thanks for your post.

      You raise an interesting point re the posthumous nature of copyright protection, although I think there is a stronger economic/philosophical argument for copyright protection and other IPRs continuing for a defined period beyond death.

      Other relevant comparisons include data protection law (which applies only to information relating to living individuals) and an obligation of confidentiality (which can continue after death).


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