Speaking Ill of the Dead

By Karl de Costa

Maligning the memory of the deceased has been viewed as a reprehensible act since antiquity. The Latin aphorism “de mortuis nihil nisi bonum” – roughly translated as “speak nothing but good of the dead” – has been traced back to as early as 300 A.D.

Nevertheless, under current California law, a deceased person’s reputation cannot be injured, and thus no legal cause of action exists for “defamation of the dead.” Dead men may tell no tales; but tales told about dead men – no matter how false or defamatory – enjoy more-or-less immunity from liability in California.

The historical rationale for allowing defamation recovery has generally been that damage to one’s reputation constitutes an injury which can negatively affect one’s ability to earn a living or to enjoy the benefits of good standing in the community. But in California, the deceased have no reputational concerns to worry about; the “dead” don’t need to earn a “living.”

One can certainly imagine situations in which injury to a person’s post-death reputation could cause actual, significant financial detriment to that person’s estate. For instance, if a dead author or performer is defamed, that person’s works may not sell as well in the future, and royalties flowing to the estate would thereby be reduced.

But still, California’s law is clear: No damages can be recovered for defamation of a decedent, and survivors or descendants have no independent personal legal claim for injury done to their deceased relative’s “good name.”

Across the pond, though, a sea-change (to mix metaphors…) may be underway.

Last year, the European Court of Human Rights made a ruling rejecting a son’s claim seeking recovery for newspaper articles that suggested that his deceased father was a Nazi collaborator. The son alleged that dissemination of the articles breached his own rights under Article 8 of the EU’s Convention on Human Rights, which Article mandates respect for one’s “private and family life.” The ECHR rejected the son’s claim on grounds that the father was not explicitly identified in the articles, but its ruling included statements leading analysts to conclude that, otherwise, the son’s claim could have succeeded.

EU journalists, biographers, and publishers have expressed concerns that such an outcome could allow aggressive litigants to use the threat of expensive libel actions to suppress adverse coverage of their dead relatives.

Will EU member nations at some point recognize legal claims based on defamation of the dead? And, if so, will California follow?

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