Can you be sued for defaming the dead?

It has not been possible for a defamation claim to be pursued in the UK after a claimant dies. However, the European Court of Human Rights (Fifth Section) has recently looked at this in Putistin v Ukraine.

The claimant was the son of Mikhail Putistin, a former Dynamo Kyiv Football Club player, who competed in the 1936 Russian football championship.

In August 1942, a match took place between FC Start (a team mostly comprising professional footballers from Dynamo Kyiv, who were then working at a bakery in Kiev) and a team of German Luftwaffe pilots, air defence soldiers and airport technicians.

The claimant’s father played in the match. FC Start won and this victory allegedly resulted in serious repercussions for its players, who were arrested and sent to a local concentration camp, where four of the players were eventually executed.

Authorities in Kiev commemorated the match’s 60th anniversary in 2002 and it was the subsequent media coverage that prompted the claim.

A newspaper, Komsomolska Pravda, published an article entitled ‘The truth about the death match’, which referred to a film being made based on events surrounding the 1942 match.

The claimant alleged that the article suggested his father had collaborated with the occupying police force and the Gestapo in 1942. The District Court, Court of Appeal and Supreme Court all rejected the claim.

Article 32 of the Ukrainian Constitution guarantees the right to rectify incorrect information published about
a claimant or members of their family and the right for compensation for damage inflicted by the collection, storage, use and dissemination of such incorrect details.

Reputational damage

The essence of the claim, however, was an allegation that the reputation of the claimant and his family had been damaged because the domestic courts refused to order the rectification of the allegedly defamatory information.

The Ukrainian government accepted that the right to respect the honour and dignity of the deceased relative was an element of the right to respect for private life, guaranteed by article 8 of the European Convention.

The European court also accepted “that the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the
scope of article 8”.

Despite this, the claim failed, primarily because the domestic and European courts both concluded that the article would not be understood as referring to the claimant’s father.

However, the fact that the European Court and the domestic court both accepted that an individual’s article 8 rights might be engaged by the publication of statements that affected the reputation of a deceased member potentially opens up a new area for claims.

In the UK, publishers and broadcasters did not have to worry about allegations against dead individuals, having carte blanche to defame them. This latest ruling may mean that family members of a deceased person who has been defamed will seek to pursue claims in the English courts.

It may be that a more serious challenge will be made to the principle put forward in Putistin as the point was seemingly accepted by the state and the European Court without a great deal of argument.

We also expect that the English courts would be reluctant, as a general rule,
to draw the conclusion that a defamatory statement about a relative who had died had such an impact on an individual that they should be allowed
to pursue a claim.

However, you only have to look at the freedom that the press had to speculate about the activities of Jimmy Savile and Cyril Smith
to see the potential risk, should material of this nature be published then later proved to be untrue or unsubstantiated.

Tim Smith is a partner at BLM

Photo credit: Marisa Allegra Williams