The Latin phrase “De mortuis nil nisi bonum dicendum est” means of the dead nothing but good is to be said. It sets an appropriate reminder for the living to not speak ill of the dead as they cannot defend or justify themselves. However, what are the repercussions when this is not followed? This article examines what happens when a deceased person is defamed.
In the UK a deceased person cannot be defamed. Defamation is a personal cause of action which protects an individual’s reputation during their lifetime. Due to this, the courts treat the deceased as not having a reputation capable of being damaged.
Under the Defamation Act 2013, a claim for defamation is established where a statement published to a third party has caused or is likely to cause serious harm to the claimant’s reputation. This condition cannot be satisfied once a claimant has died. Similarly, if an individual has started defamation proceedings but dies before the claim is determined, the proceedings will usually come to an end.
The exmaple of Jimmy Savile
The position is illustrated by the case of Jimmy Savile. During his lifetime, he was a prominent public figure widely praised for his media persona and charitable work. Publishers were cautious about printing allegations against him when he was alive because of the risk of libel proceedings, as any such reporting could have caused serious harm to his reputation and exposed publishers to potential claims. However, following his death, the media reported far more extensively on the sexual abuse allegations made against him, as the risk of a defamation claim had subsided.
In addition, a claim for defamation cannot be brought on behalf of someone, nor can it be assigned to a deceased individual’s estate. An exception to this is when a minor is defamed, here, a parent or guardian may bring the claim for them. A further exception is where a defamatory statement about the deceased also identifies a third party, such as a relative or friend, or reflects on that person’s reputation. In this circumstance, the publication of details about the deceased could significantly affect their living relatives.
Putistin v Ukraine
In Putistin v Ukraine, the claimant brought a claim to the European Court of Human Rights (ECHR) alleging that a report implied his late father was working with the Nazi police. The ECHR rejected the claim because he and his father were not clearly identified in the report. However, the court did not rule out the potential for a claim to succeed on this basis if they had been named.
Overall, while there is some support for extending the ability of third parties to pursue defamation claims on behalf of deceased individuals, particularly where they have a close connection to the deceased or have suffered related harm, the existing legal position remains that such claims cannot generally be brought on behalf of a person who has died.
At Nath Solicitors, we provide expert advice and guidance on defamation matters. If you need advice or assistance, please contact Nath Solicitors on 0203 983 8278 or get in touch with the firm online.