In an earlier article on defamation I mentioned that significant changes to the law of defamation were introduced by the Defamation Act Chapter 199 of the Laws of Barbados. Two areas of radical change relate to the effect of death on pending actions for defamation and the matter of defamation of the dead.
Prior to the proclamation of the Defamation Act in 1997 if either party to an action of libel or slander (now an action for defamation) died before judgment, the action abated.
The personal representative of a deceased plaintiff could not continue the action even though special damage may have accrued to the plaintiff’s estate.
Nor could the action be continued against the personal representatives of a deceased defendant.
It was also not possible to defame a person who had already died.
The above changes to the defamation law are very significant since very few jurisdictions have enacted laws of a similar kind.
The new Barbados provisions are to be found in Sections 25 and 26 of the Defamation Act, which are now reproduced in part:
Section 25
“(i) A cause of action in respect of defamation shall survive against the estate of the defendant in the action or the person who, if he had survived, would have been the defendant in the action.
(ii) Where the plaintiff in an action for defamation dies prior to judgment, his personal representative shall be entitled to continue on the action and recover such damages as would have been recovered by the plaintiff.
(iii) A cause of action in respect of defamation shall survive in favour of the personal representative of a person who has died without bringing an action for defamation, but the personal representative shall, in an action for defamation brought by him be entitled to commence and continue proceedings to the extent only of obtaining a declaration or an injunction or both as the circumstances may require, and compensation for actual or likely pecuniary damages suffered by the deceased or his estate as a result of the defamation.
Section 26
(1) Where the relation to a person who has died, a person publishes matter, the publication of which would, if the deceased had not been dead, have constituted defamation, any of the surviving relatives of the deceased shall, within a period of three years beginning with the date of death of the deceased be entitled to bring proceedings against the publisher for:
(a) a declaration that the said matter published was untrue:
(b) an injunction against the defendant;
(c) such an award of costs, if any, as the court thinks fit, but not for damages.
(2) The relatives of the deceased referred to in this section are
(a) the spouse;
(b) parents;
(c) brothers and sisters;
(3) If more than one of the relatives referred to in subsection (2) bring proceedings as aforesaid, the proceedings shall be consolidated unless the court shall otherwise order.”
It should be noted that where an action is commenced on behalf of a person who has died the plaintiff can only obtain a declaration or an injunction and compensation for likely pecuniary damage suffered by the deceased or his estate as a result of the defamation.
While for defamation of the dead only certain relatives of the deceased namely: the spouse, parents and brothers and sisters can commence an action for defamation; and they may only obtain a declaration that the said matter published was untrue and an injunction against the defendant.
