Libel ruling has implications for freedom of expression

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”.

Crucially, the court then went further in accepting that “the reputation of the deceased member of a person’s family may, in certain circumstances, affect the person’s private life and identity and thus come within the scope of article 8”.

On the facts, the applicant’s case failed on the grounds that although he was affected by the article, he was so only in an indirect manner and the level of impact was quite remote.

Nevertheless, the decision has potentially worrying implications for freedom of expression. In theory, it is now open to any blood relative at any time to bring an action where a deceased person has allegedly been defamed. The ECtHR has over the years expanded the right of reputation in the context of article 8 in a manner which goes well beyond what was intended when the convention was originally drafted.

There is no explicit reference to “reputation” in article 8. Nevertheless, the court began, in a series of decisions from about 2003, to treat a person’s reputation as being capable of protection by article 8 as part of the right to respect for private life. The decision in Putitstin extends this even further as it is now no longer only in circumstances of harm to one’s own reputation that article 8 can be invoked – the reputation of the deceased member of a person’s family may also affect a person’s private life and identity.

Some may see this as a welcome development. After all, why shouldn’t relatives be entitled to seek legal redress where a person’s reputation has been destroyed by defamatory falsehoods as soon as they have died? However, the traditional rule that the dead could not be defamed has provided a vital space for full scrutiny of public figures and the establishment of historical truths and narratives.

The grievances of relatives with media coverage of a loved one, however justified in some cases, should not be allowed to get in the way of vital investigative reporting, historical assessment and potential uncovering of unwelcome facts and uncomfortable truths.

Damian Byrne is a barrister