John McLellan: Voices from beyond the grave present a legislative headache

The SLC has been consulting on defamation reform for over 2 years.
The SLC has been consulting on defamation reform for over 2 years.
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It was only when he was in his grave that the truth about the appalling crimes of Jimmy Savile became known, and, partly as a result, a new law of defamation of the dead has been ruled out by the Scottish Law Commission (SLC).

The SLC has been consulting on defamation reform for more than two years now and yesterday published its draft proposals for a complete overhaul, much of which will bring Scots law into line with changes introduced in England and Wales under the 2013 Defamation Act.

Defamation of the dead has received considerable political attention, but the Savile case illustrated the difficulties in allowing the threat of libel action as a means of covering up criminality to continue after death. There may be some disappointment at this, but when the key witness cannot be called to give evidence, the legal basis for defamation of the dead has always been problematic, and belief in real damage after death is in the realms of metaphysics not jurisprudence. Upset of surviving relatives may be real, but reputational harm cannot be transferable.

Although defamation of the dead maybe the headline-catcher, other aspects are of greater significance for media organisations. In particular, establishing that action can only be taken within a year of initial publication, replacing the current three-year window, will be widely welcomed. The bill also ends the ability of a complainant to re-set the clock every time the offending story is opened on the internet.

The requirement for a complainant to show that they have suffered “serious harm” before court action can proceed seems like common sense, but the problem remains that what amounts to serious harm will always be subjective. The successful action in the London High Court by food writer Jack Monroe, who won £24,000 damages and over £100,000 costs from columnist Katie Hopkins for two tweets, suggests that the bar is not always stratospherically high.

A new presumption against a jury trial for defamation cases could hit political resistance if it is seen to tip the balance towards defendants. Despite the fundamental belief that juries can set aside preconceptions and prejudices, media companies have long felt that jurors favour complainants. Tommy Sheridan won £200,000 from a jury in his action against the News of the World, although the money hasn’t been paid because he was subsequently jailed for lying on oath. Consultation on the draft bill continues until the end of the month and legislation could be put before the Scottish Parliament in the coming year, so even with a fair wind the new laws are unlikely to be in place before 2019.

l John McLellan is director of the Scottish Newspaper Society and a City of Edinburgh Conservative councillor