Watch out - ECHR rules that criticising the dead could undermine surviving family's Article 8 rights

Just when you thought it was safe to defame dead people, the European Court of Human Rights has issued a judgement that looks likely to make it more dangerous than ever.

Libelling dead people was a rarely-used criminal offence until the Ministry of Justice abolished it in July 2009 after a campaign by free speech groups.

It dated from the days of the Star Chamber, and could only be used if an untrue statement about a dead person was likely to cause a breach of the peace. The publisher had to rely on a defence of public interest.

But now the ECHR has ruled that libelling a dead person could breach Article 8 of the convention – the right to respect for one's private and family life.

In other words, an article that attacks a dead person could damage the surviving family’s reputation to the point where it interferes with its private life.  

The court said: “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.”

The case was brought against Ukraine by Mr Vladlen Putistin over an article that indirectly criticised his dead father’s role in the infamous World War 2 Death Match which inspired the famous film Escape to Victory. The article did not refer to the applicant’s father.

The ruling could now lead to families bringing actions against the UK media over articles that make serious allegations about relatives who have recently died. Food for thought when you consider allegations made against people like deceased Jimmy Savile.

Cleland Thom is a consultant in media law

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