Don’t speak ill of the dead

The press is not fit to regulate itself.

Indeed, only yesterday Newsnight reported that – ahead of the full Privy Council meeting on Wednesday – a sub-committee of the Privy Council has already rejected the industry’s charter for regulation as insufficiently independent. Two recent examples of the press’s poor conduct underline why real independent regulation is vital. 

Two Mail on Sunday journalists have reportedly been suspended and its editor has apologised ‘unreservedly’ for a reporter attending, uninvited, the private memorial service for Labour leader Ed Miliband’s uncle. The reporter’s intention had been to seek comment from the deceased’s friends and family on the story in its sister paper, the Daily Mail, accusing Ed’s father – also deceased – of being a man ‘who hated Britain’. Ed Miliband has called this an ‘appalling lie’; the newspaper has published his right of reply but stands by its original assertions and refuses to apologise.

The reputation of the deceased Mr Miliband may have been sullied but his family has no further recourse to remedy that reputation for him.

The roots of the Latin phrase ‘don’t speak ill of the dead’, date back to the fourth century. But there is no legal impediment to do so. A claim in defamation to remedy a man’s ruined reputation is unavailable to the dead. Odd, when one’s reputation is all that is left when one has shuffled off this mortal coil.

Jan Moir’s 2009 article, also in the Daily Mail, about the singer Stephen Gately caused outcry in suggesting that his untimely death was the result of a dangerous lifestyle and drug abuse. Last year, the Leveson Inquiry heard evidence from Margaret Watson, mother of 16 year old daughter, Diane, who was stabbed to death in Glasgow. She told of the devastating impact of misleading media coverage, damaging to the deceased’s good name and deeply distressing for the family who also had to come to terms with Diane’s brother Alan taking his own life, reportedly gripping pages of the media coverage of her murder.

Demands for changes in the law have fallen on stony ground. Labour MP Helen Goodman’s recent proposals for posthumous remedy for relatives to be included in the Defamation Bill scheduled to come into force before the end of this year were dismissed by Parliament.

Allowing actions from beyond the grave would have a chilling effect on free speech, the arguments goes, and inhibit the accurate recording of history. Indeed, the many allegations about disgraced television presenter Jimmy Savile were not widely published until after his death. And while media mogul Robert Maxwell muzzled debate on his murky life with gagging writs, only after his fatal tumble into the ocean were allegations about his activities published without fear of libel litigation.

Following the Watson affair, the Scottish Government launched its consultation paper, ‘Death of a Good Name’ on whether remedies for posthumous allegations should be developed. It provisionally concluded that pending the outcome of the Leveson Inquiry, ‘better media regulation’ was more appropriate than legal reform. But will better media regulation ever be seen?

While the press – the watchdog and bloodhound of society – might have had its tail between its legs after Lord Justice Leveson’s report on its culture, practices and ethics, this animal is beginning to show its teeth again. Former Prime Minister Tony Blair famously referred to the press as a ‘feral best’. And if a robust regulator isn’t put in charge of this powerful creature then the Labour leader, his deceased father and the mourners at his uncle’s memorial will not be the last to have their rights viciously savaged.

Amber Melville-Brown, partner and head of media and reputation management, Withers