Deathly lacuna

Could privacy rights be extended to allow libel claims to protect the reputation of the dead, wonders Richard Easton

De mortuis nil nisi bonum: say nothing but good of the dead. No such Roman restraint was shown by The Daily Mail in September when it dubbed Labour leader Ed Miliband's late father, Marxist scholar Ralph Miliband, "the man who hated Britain".

But why could the leader for the opposition not sue for libel against his father? Why can the dead not be defamed under English law? Should there be a tort of deathamation? And does a decision by the European Court of Human Rights in late November suggest that grieving relatives might be able to claim for calumnies against deceased loved ones?

Proving a negative

Under English law, the dead cannot be defamed. Moreover, a defamation claim cannot, unlike all other causes of action, survive the claimant's or defendant's death, even if, as was illustrated this April, all evidence has been heard by the court (Smith v Dha [2013] EWHC 838). One can (lawfully) speak ill of the dead without fear of defamation suits.

The tort of malicious falsehood, however, survives death and can be founded on posthumous lies against the dead. But unlike defamation actions, where the burden shifts onto the defendant to prove an insult's truth or fairness, malicious falsehood involves a trickier task for claimants: they must prove a negative - the falsity of the statement - before demonstrating the defendant's malice in telling the lie to a third party. And only damages for pecuniary losses can generally be sought. Emotional upset caused by a malicious falsehood was compensated for in Shad [2000] 1 WLR 618 but this extreme example involved particularly cruel lies against a living claimant and would be most unlikely to apply to posthumous lies. Malicious falsehood is perhaps better invoked against business competitors' untrue adverts than to guard the dead's reputation.

The deathly lacuna in defamation law led the Faulks Committee to recommend in 1975 that the deceased should be protected from slanders and libels. However, in 1991, the Supreme Court Procedure Committee concluded that the evidential difficulties of defending claims brought by a deceased's estate (the dead cannot be cross-examined on a calumny's truth) and the unnaturalness of extending a tort based on hurt feelings to insensible cadavers militated against allowing defamation to cover the dead. And although Lord Leveson in his Report considered posthumous defamation "an interesting idea", he wondered about the "complications". "Would, say, the family of Sir Winston Churchill be able to sue if a published book was defamatory of him?" he asked. And at the bill stage of the Defamation Act 2013 it was unsuccessfully proposed that actions for post-mortem defamations within the year following the death of a 'close relative' should be allowed.

Mephisto's pact

The English liberty to insult the dead seemingly without fear of legal restraint or penalty is not enjoyed in civil law systems. Take Germany, where the 1971 Mephisto case still haunts press and artistic freedom to insult the dead.

Klaus Mann's 1936 novel Mephisto portrayed actor Hendrik Höfgen's rise in Nazi Germany, a career that leads to his playing Mephisto in a production of Faust. Höfgen's own Faustian pact is with Nazism. Mephisto's Höfgen was a thinly-veiled portrait of Mann's brother-in-law Gustaf Gründgens. And when a West German publisher decided to print an edition of Mephisto after Gründgens' death, Peter Gorski, Gründgens's adopted son, sued for the posthumous insult to his adoptive father caused by the novel's republication. Germany's Federal Supreme Civil Court held that the rights to human dignity and freedom of individuality enshrined in the German Constitution demanded post-mortem protection of Gründgens's image and reputation in the public memory, a decision upheld by the Federal Constitutional Court ([1968] N.J.W. 1773; [1971] N.J.W. 1645, BVerfG).

So does 'human dignity' survive death under the European Convention on Human Rights? Until this year, it appeared not: just as reputation ends with death in common law systems, convention rights do not cover the dead (article 34 of the convention, as applied in Fairfield v United Kingdom, application 24790/04).

Convention's aegis

But on 21 November, the European Court of Human Rights' Fifth Section held in Putistin v Ukraine (Application 16882/03) that the living's right to privacy can be violated by libels levelled at dead relatives, thus bringing the dead indirectly under the convention's aegis.

In Putistin, the son of former Dynamo Kyiv football player Mikhail Putistin, claimed that Russian tabloid Komsomolska Pravda had published a defamatory suggestion that his father had collaborated with the Gestapo. Mikhail Putistin had played in the 'Death Match', a 1942 game of football in which a Ukrainian team triumphed over occupying Luftwaffe servicemen. The victorious Ukrainians were, so the Death Match legend goes, sent to a concentration camp. The players' collaboration with the Gestapo was alleged by the producer of a revisionist film on the Death Match in an interview published in 2001 by Komsomolska Pravda.

Despite the novelty of the Putistin argument, the Ukrainian government surprisingly conceded that privacy rights encompassed the reputation of deceased family members. And the Strasbourg court unprecedentedly accepted that Putistin's right to privacy had been engaged by the intimation that his father was a quisling. However, Putistin's father had not been named in the article and could only be identified if one already knew him to have played in the 'Death Match': press freedom, therefore, outweighed the effect on the applicant according to the court.

Posthumous rights

Does Putistin mark the emergence of posthumous dignitarian rights? What will the Grand Chamber of the Strasbourg court make of the fifth section's extending the right to privacy to relatives' obituaries? And is there not a risk that, just as the living's reputational rights can inhibit rigorous journalism and scientific inquiry (see British Chiropractic Association v Singh [2010] EWCA Civ 350 and 'Stifling the debate', Solicitors Journal, 18 July 2011), historical research might be reduced to "flattery and fustian" (Milton, Areopagitica) by shielding the dead's reputation to preserve the living's 'privacy'?

Perhaps Voltaire was right: "to the living we owe respect, but to the dead we owe only the truth". SJ

 

---

 

Richard Easton is a solicitor at GT Stewart Solicitors '¨

 

 

 

 

---