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Ralph Miliband’s diary could have been kept secret if Ed had used new Guernsey rights legislation
Amid the recent furore surrounding the Ralph Miliband story, some details might have been missed.
The dispute arose from an article in the Daily Mail describing Miliband Snr as “the man who hated Britain”. The allegation seemed to hinge on an excerpt from Miliband’s diary which he wrote as a 17-year-old in which he stated: “The Englishman is a rabid nationalist. They are perhaps the most nationalist people in the world. You sometimes want them almost to lose [the war] to show them how things are”.
Even Ed Miliband accepted that this might not be an incidence of libel because his dad, Ralph, is dead. He said: “one cannot libel the dead, but one can slur them”.
And Ed is half, but not completely, right. Following an established statutory principle reasserted in Hatchard v Mege, a court excluded the prospect of libel of a dead person, because “a civil action for libel dies with the death of the person libelled”.
So where might the estate of the late Ralph turn? Following on from a recent debate hosted by BDO’s head of valuations David Mitchell and including LBC presenter Larry Lamb, an audience debated whether the legal protection surrounding personalities like the late Ralph Miliband should be enhanced as it might be under the Image Rights (Bailiwick of Guernsey) Ordinance 2012, introduced last year. No consensus was reached. This legislation seeks to protect the image and personality rights not just of celebrities like Manuel Pellegrini, the manager of Manchester City FC and a recent applicant to the register, but even those, like Ralph Miliband, who have died in the past 100 years. Once that person’s rights are registered, they are protected from denigrating treatment including adverse news reporting unless a newspaper can show it was recording current rather than old news.
Of course, the Mail might suggest that a reference to the late Mr Miliband’s diary, extracts from which appear to have been reproduced in its article verbatim, was just that – current news reporting. But when the self-same issue arose in relation to the verbatim reproduction by a newspaper of letters between Edward VIII and Mrs Simpson back in 1936 when reported much later in the 1980s, the High Court decided such reproduction of their content fell outside the term “current”.
The facts of that case and Miliband’s would appear identical on all levels. Just as a newspaper cannot rely on the reproduction of personal correspondence written some 50 years ago, the Mail would not be entitled to rely on the content of Ralph Miliband’s 1940s diary.
Perhaps Ed might now consider registering his late dad’s personality and image on the Guernsey image rights register because any appearance of the Mail article on the shelves of Guernsey paper shops or on the web might infringe those rights.
So Ed was half-right: one cannot defame the dead, but one can infringe their registered image rights.
Mark Engelman is also director of Guernsey-based image rights agency Harbour Intellectual Property