Defamation after death? : implications vis-à-vis human rights

Abstract

This present study examines whether the deceased can be defamed and whether protection is afforded to their reputation, an area which has rarely been explored, including in local legal scholarship, despite the fact that it raises compelling legal questions. More specifically, this concept is analysed in relation to Article 8 and Article 10 of the European Convention on Human Rights. Through an analysis of the European Court of Human Rights jurisprudence, this study sets out to determine whether the deceased and the relatives of this individual can be safeguarded when such deceased individual is defamed. Various judgments have explored this area, particularly those of the European Court of Human Rights and whilst there has not been a conclusive answer on the matter, a pattern can be deduced from the jurisprudence. The author also looks at different theoretical standpoints and legislative approaches which give different meanings to personality rights. While common law countries do not allow a cause of action when the deceased are defamed, civil law jurisdictions guarantee posthumous personality rights through the concept of human dignity. The local position is also analysed by taking into account the previous position taken by the Maltese Courts in comparison to Article 17 of the Media and Defamation Act. Ultimately, this paper demonstrates that protection is usually afforded to the family members of the deceased individual when they are directly affected rather than in the memory of the individual himself. This is the proportionate approach currently present in Maltese law.