Libel ruling has implications for freedom of expression

Mon, May 5, 2014, 01:00

The received wisdom that “the dead cannot be defamed” has long offered succour to journalists, biographers and academics in the context of otherwise draconian defamation laws. Much information about figures of public and historical importance would otherwise never have come to light. However, the rule may no longer hold true in all circumstances following a ruling of the European Court of Human Rights (ECtHR) in a case called Putitstin v Ukraine, in which the applicant complained of an article which, he said, defamed his dead father. While the case failed on the facts, the court accepted that the reputation of a deceased member of a person’s family may come within the scope of article 8 of the European Convention on Human Rights. The decision has potentially troubling implications for freedom of expression.

The applicant in the Putitstin case was the son of a former footballer who, on August 9th, 1942, took part in a legendary “Death Match” between FC Start – a team made up mostly of professional footballers of Dynamo Kiev who were working in a local bakery at the time – and “Flakfelf” – composed of German military personnel and airport technicians. Four of the victorious home team were subsequently executed at a local concentration camp.

On April 3rd, 2001, the newspaper Komsomolska Pravda published an article titled “The Truth About the Death Match”. The article contained an interview with DK, the future director and producer of a film based on the events surrounding the Death Match.

In one paragraph of the article, DK stated that, according to his sources: “Actually, there were only four Dynamo players in the Start team created by the director of the local bread factory. And these [were the players who] were executed. And other [football] players worked in the police, collaborated with the Gestapo.”

The article was accompanied by a picture of the match poster from 1942 which included the names of all the players. However, the applicant’s father was not mentioned in the article and his name was not legible on the picture of the match poster.

The applicant instituted proceedings against Komsomolska Pravda on the grounds that the article suggested that his father had collaborated with the occupying police force and with the Gestapo in 1942. Having shown that his father had also been sent to a concentration camp, although not executed, he sought rectification of the article and damages. The Ukrainian courts rejected his claim.

When the case came before the ECtHR, it noted that the notion of “private life” within the meaning of article 8 of the convention is a broad concept that includes elements relating to a person’s identity and physical and psychological integrity; and that, as a person’s reputation forms part of his or her personal identity, it thus falls within the scope of his or her “private life”.

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