Can you defame the dead?
Can the dead be defamed?
In short, no. The dead cannot currently be defamed under English law. This is because defamation, whether it is libel or slander, is a personal action which cannot be assigned or brought on someone’s behalf. The exception to this rule is if the person subject to defamation is a minor, in which case a parent or guardian can bring the claim on their behalf. Where the deceased is defamed and a friend or relative is also identified in the statement, or the statement reflects upon their reputation, then there is the potential for that relative or friend to bring a claim for defamation.
Similarly, where a person commences defamation proceedings but passes away before a decision is reached, the action is abated. The reason for this principle is quite simple: defamation is an act or statement that damages a person’s reputation and once you are dead, you are taken to not have a reputation in legal terms which is capable of being damaged.
Interestingly, Jimmy Savile reportedly managed to supress the media from openly commenting on his behaviour using libel threats—that was until he passed away. It is clear that the media no longer fear a libel claim following his death.
An attempt was made to insert a provision in the Defamation Act 2013 allowing libel actions by relatives of the dead, but it was defeated. Perhaps the fact that an attempt has been made to allow such claims signifies an appetite among some for change, but this will undoubtedly be opposed by the media.
Have there been any examples of cases where the relatives of a deceased individual have been successful in bringing a defamation action on behalf of the deceased?
There have been cases where the courts have considered claims of defamation brought by the relatives of the deceased on their behalf. As of yet, however, no applicants have been successful in their endeavours.
However, the case of Putistin v Ukraine (App No 16882/03)  ECHR 16882/03 potentially provides a significant development in this respect, raising the possibility that relatives of the dead may be able to suppress adverse coverage. In this case, the applicant, Vladlen Putistin, complained about the defamation of his father who was a Dynamo Kiev football player and took part in the so-called ‘Death Match’ in the Second World War between a team of professional Soviet players from Dynamo Kiev and Lokomotiv Kiev and a team from the German Luftwaffe, known as the ‘Flakelf’. The professionals won the match but allegedly suffered terrible repercussions, including the execution of some of the players.
In 2001 a newspaper published an article commenting on a film starring Michael Caine, Sylvester Stallone and Bobby Moore, based on the Death Match. The applicant believed this article discredited his father’s reputation because it suggested some of the Dynamo Kiev football team which included his father, who is dead, had worked with the Gestapo. At first instance, the national court dismissed the applicant’s claim. The applicant therefore appealed to the ECtHR complaining that the article breached his own art 8 rights to a private and family life. The court rejected his claim on the basis that his father was not significantly identified in the article and his father’s name was not legible on the photograph of the match poster which was published with the article.
The ECHR held that applicant’s art 8 rights were ‘marginally affected and only in an indirect manner’ as his father was not sufficiently identified, but they did not discount in theory the potential for a claim on this basis to succeed.
Are there any circumstances where the publication of details about a dead person could affect the rights of a living relative?
Yes. The publication itself may identify a living relative or reflect upon their reputation. In such a case, that relative may bring an action for defamation. In addition, a publication regarding a deceased person can affect a living relative’s right to respect for private and family life, as was considered in the Putistin case. A claim of this nature would be based upon the European Convention on Human Rights which imposes a positive obligation on the state to prevent parties from interfering with such rights.
What are the challenges in defending the reputation of a deceased individual?
Clearly, there are many challenges in defending the reputation of a deceased person. In the eyes on the law, when a person ceases to live, so does their reputation. It is therefore very difficult to defend something that does not exist. The key witness is no longer available and family and friends are left with the dilemma of trying to maintain a dignified silence, which risks being viewed as an acceptance of guilt, or seeking to fight with the risk of inflaming matters.
How would the defence of truth operate in relation to a historic character where the truth is debatable or unverifiable?
Generally speaking, truth is an absolute defence to a defamation claim. The burden of proof is with the defendant to show otherwise. The defendant does not need to show that every word they wrote was true, but that the ‘string’ is true, that is, the essential or substantial part is true—ie the lifeblood of the statement.
Generally, the more serious or malicious the defamatory publications are, the more difficult it is for the defendant to vindicate them. This position becomes even more problematic when the alleged defamatory publication is based on a contentious historic event. Depending on the importance of the historical event and person(s) in question, the courts are likely—as they did in the Stalin case—to hold that such matters remain open to public scrutiny and criticism due to the importance of balancing the rights of all involved.
Does the legal position change depending on the life and character of the person being ‘defamed’, ie a person famed for charitable work or a non-famous person?
The legal position is influenced by the life and character of the person being defamed. This can be seen in the Stalin case where the court held that, due to Stalin’s stature as a public figure, he remains open to such scrutiny. The life and character of the individual being defamed are clearly important factors when determining the effect a publication would have and therefore the legal position that would be taken by the court. Someone who, for example, is known for their charitable works may be more likely to be defamed by a mildly controversial statement than someone who has a long criminal record.
In the Stalin case, as noted above, the court did distinguish between defamation of an individual whose reputation, as part of their families’ defamed reputation, could fall within the scope of art 8 of the Convention, and legitimate criticism of public figures who expose themselves to scrutiny.
Jill Bainbridge is a partner and head of the intellectual property group and trade mark prosecution team at Blake Morgan. She has extensive experience in defamation and reputation management, dispute resolution, franchising and intellectual property disputes. Jill also regularly lectures on intellectual property law, trademarks and brand strategy.
Interviewed by Jane Crinnion.