Death of a Good Name - Defamation and the Deceased: A Consultation Paper

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Ministerial Foreword

Concern for posthumous good name and reputation is not new.

It has been said that:

" The evil that men do lives after them; The good is oft interred with their bones" 1

That phenomenon may be considered unfair enough. Perhaps it is worse still if what endures is not just the memory of evil for which the deceased had actually been responsible, but also evil of which they are falsely accused.

Especially for close relatives, the death of a loved one will be a source of significant pain and grief, not least if it occurs in sudden or traumatic circumstances. If the death is then followed by unfounded allegations which denigrate the character or activities of the deceased, that pain and grief is likely to be made even more acute. If the relatives are unable to challenge such stories effectively, then - compounding everything else - they may experience feelings of helplessness and of guilt at failing to protect the good name of their lost loved one.

It is not unknown for such allegations to be published after the death of celebrities. But potentially, the publication of such material can follow the death of any person - anyone's mother or father, son or daughter, brother or sister - especially if the circumstances of the death are unusual or newsworthy.

The central question addressed by this consultation paper is whether additional protections - beyond those which already exist - could reasonably be developed in order to deter and, where necessary, to provide redress in response to false posthumous allegations, or whether it is right that grieving relatives should be expected to endure such allegations as part of the essential rough and tumble of a society which cherishes freedom of expression, as a price that has to be paid for the preservation of that freedom.

The issue is significant. It has been wrestled with in jurisdictions across the globe. This consultation paper aims to ensure that the people of Scotland also have an opportunity to consider an issue which, potentially, could affect any one of us.

Fergus Ewing