5th November 2021

Long Read by Rebecca Bennis

Last month, the European Court of Human Rights (“ECHR”) published its decision in ML v Slovakia 34159/17 (14 October 2021) which appears to challenge the long-standing principle that you cannot defame the dead.

The facts of the case 

The applicant (a mother) brought the case following distressing newspaper coverage of her late son. The original action was for protection of her integrity and post-mortem protection of her son’s integrity. When the action was dismissed by the Slovakian courts, the mother complained that the dismissal amounted to a violation of her own right to respect for her private life under Article 8 of the European Convention on Human Rights.

The applicant’s son, formerly a Roman Catholic priest, was convicted in 1999 of sexual abuse and threatening the moral education of young people, having attempted to have non‑consensual oral sex with a minor boy. In 2002, he was convicted of disorderly conduct having had consensual oral sex with an adult man in a public place. But by 2003, those convictions had become spent allowing the offences to be removed from his criminal record, and in 2006, he died.

Two years after his death, three tabloid newspapers published articles about his conviction for sexual abuse and a possible link between it and his alleged suicide. The articles claimed he had confessed to  carrying out sexual abuse, but that the Church had offered a guarantee of his good behaviour, on account of which, his sentencing was interfered with. The son’s full name together with vivid details of his private and sexual life were published and presented as being from criminal case files, or as information given in statements by those who spoke to journalists. Pictures of the son were also included in one article.

The applicant mother however argued that the articles contained false and misleading allegations which did not correspond to the criminal courts’ findings. For example, no information appeared in the decisions about any guarantee offered in the proceedings and, in fact, her son had died of medical negligence and drug intoxication, not suicide.

The ECHR found in favour of the applicant mother, concluding that the domestic courts had failed to balance her right to a private life and the freedom of expression of the newspaper publishers. It held the articles were written in a sensationalised manner with headlines such as “Protected priests. The Church provided a guarantee to get a paedophile priest out of prison” and were based on unreliable sources (following one journalist’s evidence that she could not remember whether she had any support for the allegations of suicide).

The judgment confirmed that “dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 [of the European Convention on Human Rights].” It was noted that the applicant mother’s private life had been affected as although she was not directly mentioned, the articles and negative responses had a substantial impact on her as she shared the family name with her son and lived in the village referenced in the articles.

Whilst the ECHR acknowledged that Article 8 cannot be used as a basis to complain about a loss of reputation following a criminal offence, it stated “a criminal conviction does not deprive the convicted person of his or her right to be forgotten, all the more so if that conviction has become spent” commenting that the applicant’s son had been given a conditional sentence with which he had complied, and that the Court had to consider the fact the articles were published years after the original convictions and indeed after they were considered spent.

The ECHR held that the articles did not contribute to any general interest debate regarding the Roman Catholic Church and its practices, as they contained particularly intrusive details and tasteless allegations. The Court reiterated the distinction between reporting fact (no matter how provocative) which is capable of adding weight to a debate of general interest on the one hand, and making allegations about a person’s private life on the other.

So, you can defame the dead?

In short, no, or at least, certainly not yet. Currently, under English law, the dead still cannot be defamed. This is because defamation (whether libel or slander) is a personal action not capable of being assigned or brought on someone’s behalf (except in very limited circumstances, for example in the case of minors).

This principle has until now allowed publishers almost free rein to deal with deceased individuals’ reputations, as seen following the death of Jimmy Savile. Prior to his death, Savile reportedly used libel threats to supress widespread discussion of his behaviour, however these threats did not protect his reputation beyond the grave.

Under the Human Rights Act 1998, UK courts are required to take account of decisions of the ECHR. This position could change in light of the Government’s Independent Human Rights Act Review which is expected to report later this year (the Review is considering the duty on UK courts to take ECHR judgments into account and the effect of such judgments on British laws). But for now, despite the decision in ML v Slovakia 34159/17 attracting criticism for potentially attacking free speech by creating a right not to be made uncomfortable by what others say, it appears to have opened the gates (or at least left the door ajar) for bereaved relatives to take action for breach of their own privacy rights under Article 8 when faced with posthumous attacks on their loved ones. To some, this may look a bit like bringing defamation proceedings on behalf of the dead, but through the back door. It is not yet known however if the decision will be followed by UK courts. But, if it is, it could have real practical consequences. All kinds of content creators across the media industry would have to consider more carefully the possible impact of their publications on the deceased’s relatives and the risk of possible action. They would also have to meticulously check the details and allegations they wish to publish about the deceased, to determine if they are fact or simply spurious allegations about the deceased designed to shock and increase sales.

In the meantime, it should be noted that regulatory bodies in the UK have in any event and for some time issued guidance about how coverage of the deceased should be approached. For example, IPSO’s (the regulator for most of the UK’s newspapers and magazines) Editors’ Code of Practice states that publications involving personal grief or shock should be handled sensitively. The Ofcom Broadcasting Code states that broadcasters should take care not to take or broadcast footage of those suffering a personal tragedy where that results in an infringement of privacy (unless it is warranted or the people concerned have given consent) and should also take care not to reveal the identity of a person who has died unless and until it is clear that the next of kin have been informed. The BBC’s Editorial Policy meanwhile states that when revisiting past events that involved suffering or trauma consideration must be given to whether surviving relatives have any legitimate expectations of privacy and, so far as reasonably practicable, the immediate families of dead people who are to be featured in a programme should normally be notified (there is also a duty of accuracy in reporting such events).

Find out more about our experience in reputation protection here.