An extension of the defamation laws which would allow the dead or their representatives to sue for libel are reportedly being consided by the government.
However, Nick Armstrong, partner in the media and entertainment team at Charles Russell, says the possibility of allowing a right of action over libelling the dead is “never going to happen”.
Potential litigants must currently be alive for a libel action to be launched. However, the Department for Constitutional Affairs is expected to release a consultation paper later this year that will include the option of extending libel laws to the dead.
Armstrong says that in the context of the Human Rights Act 1998, it is difficult to think of examples where the right to reputation of a dead person would or should prevail over the primary right of free expression, “particularly as it would have an impact not only on the reporting of current affairs but also the writing and analysis of recent history”.
He adds that there could be more scope for protecting the dead if the allegations were of the nature of personal intrusions into the family’s life. “Then, the Art 8 rights of privacy might well be something that family members could use. But that would not entail any change in the law—those rights are available now,” he says.
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