If you sue me for calling you a crook when I don't have any proof, and you unfortunately die before the case gets to court, I go scot-free. You cannot libel the dead.
That's the law not only in Canada, but also in Great Britain, Australia and New Zealand. But that may be about to change. In Scotland, the government has published a consultation paper that could open the door for the first time to legal actions on behalf of deceased persons.
It is well known in newsrooms that the dead can't come back to haunt you. It is a credit to our professional media, especially in Canada, that reporters and editors do not abuse that power by splashing lurid allegations about dead people across their front pages. But it is also true that most of us can sympathize with the agony faced by close relatives of people who met tragic or violent deaths when someone, especially the killers, makes unfounded allegations about them.
Changes have been recommended in all the above jurisdictions, but never acted upon. In 1994, the Uniform Law Conference of Canada recommended that relatives should have a right of action where a deceased person was defamed within three years after death. The recommendation was never acted on.
The Scottish case was prompted by a petition from a Glasgow couple whose daughter was stabbed to death in a playground argument. A newspaper article alleged that she had been a bully, and the couple's son committed suicide after reading it. The Scottish government's petitions committee heard evidence from a victim's rights group that bereaved families must be given a legal remedy to challenge inaccurate and defamatory information.
The subsequent consultation paper says: "The potential for defamatory material to cause distress and a sense of injustice for relatives and associates of the deceased is a powerful consideration in any country, as is the scope of the public to be misled." There is a need to act now, the paper says, because of the ability of the Internet to transmit defamatory information far and wide and forever.
Freedom of expression clearly has limits. Some are suggested in the Universal Declaration of Human Rights passed by the United Nations. One of its provisions is that "no one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation (Article 12)." Similarly, Article 8 (1) of the European Convention on Human Rights says "everyone has the right to respect for his private and family life, his home and his correspondence."
If there ultimately is a change in the law in Scotland, it would start to unravel the longstanding central principle of civil proceedings in common law -- that a claim for damages can only be brought by the person who has suffered the injury or harm to reputation.
Of course, defamation affects anyone who publishes such information too. Could the Canadian media live with a law that allows them to be sued for libeling a dead person. I think so -- in the name of common justice.