Can you defame the dead?

Can you defame the dead?
The European Court of Human Rights (ECtHR) has rejected a complaint by one of Joseph Stalin’s grandsons about an article that appeared in a Russian newspaper in which the dictator was accused of being a ‘bloodthirsty cannibal’. Jill Bainbridge, partner and expert in defamation and reputation management at Blake Morgan, explains why the dead cannot be defamed.
For the full judgment see: Yevgeniy Yakovlevich Dzhugashvili v Russia (App No 41123/10).

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) 

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