A ruling by the European Court of Human Rights has raised the possibility of court actions for defamation even after the defamed party has died.
In a case against Ukraine, the Strasbourg court ruled that courts might sometimes be required to protect the reputation of the deceased in the interests of surviving relatives.
It accepted that the reputation of a deceased family member might affect a person’s private life and identity if there was a sufficiently close link between the person affected and the reputation of his or her family, thus bringing actions within the scope of Article 8 of the European Convention on Human Rights.
The case, brought by Vladlen Putistin, alleged that an article written about the ‘Death Match’ in the second world war (and which inspired the film Escape to Victory) discredited his father, as it suggested he had been a Nazi collaborator.
The court rejected his claim, holding that the applicant was only remotely affected by the publication, but left open the possibility of successful claims in future.
Julia Varley, an associate at media firm David Price Solicitors & Advocates, said the decision is potentially a ‘radical new development’ as it goes against the fundamental principle that reputation is personal. It could, she predicted, open the way for claims for defamation of the dead.
‘Whether we will see a raft of potential claims as a result will seemingly depend on the specific facts of each case, but this decision does raise issues as to freedom of expression and will cause concern to those wishing to publish explosive stories about the deceased.’
However Razi Mireskandari, managing partner at London firm Simons Muirhead & Burton, suggested that the court had conflated defamation and privacy. The right to protect one’s reputation is a personal right which expires on death even if the claimant dies only after starting a claim, said Mireskandari, and he did not expect this case to change that principle.
Irish law, he noted, comes the closest to doing so, allowing an action that has been issued to continue after the death of the claimant.