Protecting the reputation and personality after death

Defamation of the dead by the media should be actionable, believes Catherine Ghent.

Defamation of the dead by the media should be actionable, believes Catherine Ghent.

Does or should a deceased person enjoy any protection of reputation or personality after death? Traditionally in this jurisdiction, the view has been that reputation is a personal right and therefore deemed to die with the person. In any case where reputation is involved there are four legal principles which apply; the right to privacy, the tort of defamation, the right to freedom of expression and the constitutional right to a good name.

Both the media and those who interpret and apply the law have extraordinary powers of influence in society. Laws are both a reflection of and a mechanism by which society officially defines and enforces what it sees as acceptable norms of behaviour and values. The media has enormous power in potentially challenging and/or confirming legal principles by reporting on their application and effect. It can also have an extraordinary effect on the everyday lives of individuals by virtue of the nature of reporting of events about them.

In discussing the possibility of post-mortal protection of reputation, both the media and lawyers must be conscious they are concerned with people who cannot answer back. Privacy differs from defamation in that cases arise in the former where facts are accepted as true, but it is asserted nevertheless that they belong to a category of information which should not be published. Defamation relates to a body of law, the purpose of which is to defend people against allegations or insinuations which are untrue.


A statement is defamatory if it tends to lower the person in the eyes of right-thinking people. Harm to reputation is presumed, and the burden to prove otherwise lies on the defendant.

The argument for a post-mortal action in defamation is primarily that people should not be given carte blanche to write whatever they like about the deceased. Clearly there is responsibility on the media to ensure to the best of its ability that what it publishes is true.

Of course there are difficulties in allowing such actions, notably the question on whose behalf are they actionable and the issue of remedies. Who should benefit if damages are awarded?

Irish law has held that where defamation of a deceased person also defames the living, the latter has a right of action, but only on their own behalf. There is no right actionable by any person where the defamatory remarks concern solely the deceased person. The Law Reform Commission has recommended a change in this position to allow for a three-year period following the death, within which time close relatives could sue.

Article 8 of the European Convention on Human Rights (ECHR) provides for a right of respect for private and family life and article 10, for the right to freedom of expression. Although these rights are competing and sometimes conflicting, it does not follow that they are necessarily mutually exclusive.

The right to privacy was recognised in Ireland as actionable under the Constitution in the McGee family planning case and in the case of Kennedy and Arnold v Ireland over the tapping of the telephones of two journalists. Although it is an unenumerated right under the Constitution, it is clearly set out in the new ECHR Act 2003 and the European Court of Human Rights has held that the obligations on a state are not merely negative in character but may also oblige them to take positive steps to protect the rights stated.

In terms of protecting the privacy of the deceased, the question should be asked whether it is intended to publish details of what a deceased person has done within what could be defined as their personal sphere? Is it really in the public interest to know? Even if we believe that rights expire on death, we should accept that the sensitivities of innocent related parties still exist, a concern this paper recognises in not naming suicide victims out of consideration for their families.

In England, the common law position is that a dead person cannot be defamed. In other European countries however, post-mortal protection of the personality is widely accepted - the Greek and Dutch codes expressly include such protection, and Germany, France, Belgium, Austria and Italy accept it as part of their droit commun.

Where society through act or omission has had a part in personal tragedy we should acknowledge this and use the information to analyse what has happened and take preventative action.

However, in doing so we should be careful not to compound unnecessarily the inevitable trauma such tragedy brings. Where the public interest in knowing the information is unclear, sensitivity should be used.

Any right or protection has to be subject to rigorous examination in terms of compatibility with the right to freedom of expression and is likely to be applied extremely sparingly in practice. Where a restriction is imposed, it must be prescribed by law, have been applied to pursue a legitimate aim and deemed necessary in a democratic society.

The role of the media both as "bloodhound and watchdog" is well accepted and the courts are generally slow to conclude that publication is not in the public interest.

Where allegations concern criminal offences for which people have not been convicted, I believe the media should be extremely careful in what it publishes.

If a person is accused before a court, he/she has the right to defend any charges faced and the difficulties in terms of trial by media are obvious with reporting restrictions used to prevent this.

The recent shooting of Mr Patrick Ward raises important questions in regard to post-mortal rights. It has been widely stated by sections of the media that he was shot in the course of committing a robbery.

That he cannot be charged with this posthumously is obvious, that his death denies him the right to answer this accusation is also obvious. It would be helpful if this point was litigated and a test of what constituted the "public interest" in a case such as this was formulated.

Catherine Ghent is a solicitor who specialises in children's rights.