Cameron Miranda
The question of whether the deceased can be defamed is a complex one, with varying laws across the world. In Australia, for example, defamation does not apply to deceased persons, as common law states that the dead have no rights and a person's reputation cannot be violated if they are no longer alive. However, in Germany, disparaging the memory of a deceased person can result in lawsuits, fines, and even imprisonment. In the US, the reputation of the deceased is considered a matter of value, and certain statutes protect against the intent to extort money or other valuables by threatening to injure the reputation of the deceased. The laws surrounding defamation of the deceased are further complicated by the potential for non-disparagement clauses in contracts and settlements, as well as the moral rights of copyright holders. While it may be culturally unacceptable to speak ill of the dead, the legal implications vary depending on the jurisdiction.
| Characteristics | Values |
|---|---|
| Country | Australia |
| Law | Defamation does not apply to deceased persons |
| Common law principle | Dead people can feel no shame or humiliation |
| Who can sue? | Only a living person can bring a legal action for defamation; relatives cannot continue the legal action |
| Exceptions | The US state of Rhode Island has a law that makes it unlawful to defame a dead person within the first three months of their death; Germany also has laws against defaming the deceased |
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What You'll Learn
- In the US, the reputation of the deceased is a matter of value for federal extortion statutes
- In Australia, defamation does not apply to deceased persons
- In Germany, disparaging the memory of a deceased person can lead to lawsuits, fines and imprisonment
- In Hungary, defaming the honour of the deceased can lead to imprisonment
- In Greece, disparaging the memory of the deceased is punishable by law
In the US, the reputation of the deceased is a matter of value for federal extortion statutes
In the United States, the protection of the honour of deceased persons varies across states. In Rhode Island, for instance, it is unlawful to defame a dead person within the first three months of their death. This law could protect the deceased from unpleasant obituaries or nasty words spoken at their funeral. However, if this protection were extended for a more extended period, it could hinder the writing of history books and the revelation of unsavoury facts about the deceased.
In contrast, Australian law holds that defamation does not apply to the deceased, as common law dictates that the dead have no rights, and a person's reputation cannot be violated if they are no longer alive. Only the living can bring a legal action for defamation, and such action ends with their death.
In the context of federal extortion statutes, the reputation of the deceased is indeed a matter of value. Extortion is often associated with theft or violent crimes, but it can also encompass threats to a person's reputation, such as blackmail. Federal extortion statutes criminalize knowingly depositing or delivering communications containing threats to injure the property or reputation of another, including the deceased. The threat may be communicated directly to the person or to others, and it need not be intended to be carried out. The United States Postal Service is tasked with investigating extortion offences involving mail.
The federal offence of extortion applies to both interstate and foreign telephone calls and other forms of communication. As long as the communication crosses state or national borders, it is considered to involve interstate or foreign commerce. This means that extortionate communications targeting the reputation of the deceased can fall under federal jurisdiction if they meet these criteria.
The potential penalties for extortion vary depending on the specific circumstances and the state in which the offence occurs. Some states, like Texas, charge extortion as a type of theft, while others have specific extortion statutes. For example, 18 U.S.C. § 872 prohibits extortion by federal officers or employees and carries a potential sentence of up to three years' imprisonment.
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In Australia, defamation does not apply to deceased persons
While Australian law currently allows for speaking ill of the dead, this was not always the case. In the 1970s, the Australian Law Reform Commission proposed amendments to defamation laws to make it illegal to speak ill of the dead for a period of time after their death. The Commission suggested allowing a representative of the deceased to take a defamation action if the publication was made within three years of the person's death. However, the government rejected this proposal.
The issue of defamation of deceased persons has been the subject of recent debate, particularly in the context of the Jackson Estate's lawsuit against HBO. The lawsuit raises questions about the rights of deceased persons regarding potentially defamatory material. While the short answer is that anyone who defames a deceased person is not liable under the Defamation Act 2005 (NSW), there may be a basis for reconsidering laws relating to the deceased in the future.
It is worth noting that while defamation does not apply to deceased persons in Australia, this is not the case in other countries, such as Germany, where "disparaging the memory of a deceased person" can lead to legal consequences, including lawsuits, fines, and even imprisonment. Similarly, in the US state of Rhode Island, it is unlawful to defame a dead person within the first three months of their death, which is intended to protect the deceased from unflattering obituaries or nasty words spoken at their funeral.
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In Germany, disparaging the memory of a deceased person can lead to lawsuits, fines and imprisonment
In Germany, the memory of the deceased is protected by law under Article 189 of the German Criminal Code, which states that "disparaging the memory of a deceased person" is a criminal offence. This law is unique compared to other countries, such as Australia, where defamation laws do not apply to the deceased.
The German law imposes significant consequences for those who violate it, including lawsuits, fines, and imprisonment. The punishment for disparaging the memory of a deceased person can result in a fine or imprisonment of up to two years. This law is designed to protect the reputation and honour of the deceased, ensuring that their memory is not tarnished or disrespected.
The German Criminal Code also includes other provisions related to defamation and slander. For example, Article 166 prohibits defaming the religion or ideology of others or religious institutions and associations within Germany, while Article 187 defines slander as a defamatory statement known to be false, aiming to damage a person's reputation or creditworthiness. These offences are also punishable by fines or imprisonment.
The European Court has also weighed in on the issue of defamation of the dead, with judgments implying that a deceased person's reputation is a "civil right" and a "core personality right" (Madaus v. Germany, Genner v. Austria). However, the Court has not provided a clear stance on whether the European Convention protects the reputation of the deceased or only the rights of surviving relatives.
The German law on disparaging the memory of the deceased is a unique aspect of their legal system, demonstrating a commitment to upholding the honour and dignity of those who have passed away. It serves as a reminder that words and actions impacting the memory of the deceased can have serious legal consequences.
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In Hungary, defaming the honour of the deceased can lead to imprisonment
Speaking ill of the dead is generally discouraged, with some saying that the practice dates back to the 6th-century BC philosopher Chilon of Sparta, who warned that it would harm the deceased's enjoyment of the afterlife. While some countries, such as Australia, do not recognise defamation of the dead as a crime, other countries, such as Germany and Hungary, have laws in place to protect the honour of the deceased.
In Hungary, defaming the honour of the deceased is considered a criminal offence under Article 228 of the Hungarian Criminal Code. This means that it is illegal to make false or injurious statements about a deceased person, or to use expressions that directly refer to facts that could damage their reputation. The law specifically states that:
> Whoever desecrates a dead person or his memory in the manner specified in §§ 226 or 227 shall be punished for a misdemeanour with the punishment specified therein.
Articles 226 and 227 of the Hungarian Criminal Code define defamation and libel, respectively. Defamation is defined as the written or oral publication of anything that is injurious to the good name or reputation of another person, or using an expression directly referring to such a fact. Libel is defined as disseminating a false publication orally or in any other way that tends to harm a person's reputation, either in connection with their professional, public office, or public activity, or through broad publicity.
The punishment for defaming the honour of the deceased in Hungary can include imprisonment of up to one year, with longer sentences of up to two or three years in cases where the offence is committed with great publicity (e.g. in the media) or causes considerable injury to the claimant. It is worth noting that, according to Article 52 of the Hungarian Code of Criminal Procedure, prosecutions for defamation and libel can only be initiated by the victim or their relatives as a private accusation. However, when the defamation or libel is committed against a public official in connection with their official duties, the prosecution is carried out by a public prosecutor.
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In Greece, disparaging the memory of the deceased is punishable by law
In Greece, disparaging the memory of the deceased is indeed punishable by law. This is in line with the country's ancient funerary practices, which involved performing specific rituals for the dead to ensure their successful passage into the afterlife. Death was viewed as a cause of spiritual impurity or pollution, and the memory of the deceased was considered sacred.
Today, Greece recognizes the "disparaging the memory of the deceased" as a punishable offense under Article 365 of its Penal Code. This law is similar to those found in other countries with Continental law systems, such as Germany and Slovakia. These countries recognize the civil or criminal wrongs of "desecration" or "denigration" of the deceased, allowing relatives or prosecutors to press charges.
In contrast, common law in countries like Australia states that the dead have no rights, and defamation laws do not apply to deceased persons. Only a living person can bring a legal action for defamation, and any action ends with their death. However, there have been proposals to amend these laws, such as the Australian Law Reform Commission's suggestion in the 1970s to make it illegal to speak ill of the dead for a specified time after their death.
The legality of disparaging the memory of the deceased varies across the United States. While some states, like Rhode Island and Texas, allow for libel and slander claims, the federal extortion statute 18 U.S.C. § 875 (d) also addresses the reputation of the deceased. This statute imposes fines or imprisonment for transmitting communications that threaten to injure the reputation of a deceased person.
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Frequently asked questions
Yes, under Australian law, defamation does not apply to deceased persons. Common law states that a person's reputation cannot be violated if they are no longer alive.
In the US state of Rhode Island, it is unlawful to defame a dead person within the first three months of their death. However, this is not a federal law, and it varies across states.
No, "disparaging the memory of a deceased person" can lead to lawsuits, fines, and up to two years in jail in Germany.
The estate of the deceased person can sue on behalf of the deceased as the estate goes to the deceased person's heirs. However, this is not the case in Australia, where only a living person can bring a legal action for defamation.
