There is a Latin phrase that dates back to 600 BC that translates to, “Of the dead nothing but good is to be said.” The theory behind this phrase, which is attributed to one of the Seven Sages of Greece, is that it is socially unacceptable to speak ill of the dead, as the dead are unable to defend themselves. Yet, while the ancient Greeks and several civilizations thereafter honored this sentiment, people today seem to take it less seriously than individuals of the past.
When a deceased person’s name is subject to what can only be called slander, libel or defamation, surviving family members may wonder what, if any, legal remedies they might have. Unfortunately, the answer is few.
Generally Speaking, the Dead Cannot Be Defamed
Historically speaking, the reason the law allows defamation lawsuits is to protect a person’s name so he or she may enjoy the benefits a strong reputation. Theoretically, when a person dies, those concerns diminish, as the dead cannot have reputations to tarnish. This stance has left survivors with few legal options for fighting libel after death. However, that does not mean survivors have no options.
Reputation Does Not Die With the Individual
There are several individuals who maintain that a person’s reputation lives on after death. While the deceased may not experience the consequences that defamation can cause, survivors may. To account for this fact, professionals such as John Branca work to identify legal remedies that may serve as loopholes to common tort law. FindLaw explores two such remedies.
Remedy for Economic Loss Due to Injurious Falsehoods
The first action FindLaw discusses is for economic loss that results from harmful untruths spoken about the deceased. This type of action has a far greater likelihood of success than others, as economic loss can be easily calculated and attributed to a specific cause.
For instance, say the deceased created a charitable foundation during his or her lifetime, a foundation that continued to collect donations and host events long after the founder’s death. However, soon after the defamation of the deceased, support for the foundation diminished, which greatly affected its operations.
Though common law does not allow for defamation lawsuits on behalf of the deceased, it may hear an action for injurious falsehoods, which the law often refers to as “business disparagement lawsuits.” Per one authority on torts, such a lawsuit may arise when a misrepresentation causes interference that may not be personally defamatory but results in monetary loss all the same.
It’s important to note that while the courts may hear such an action, the plaintiff must prove “special damages.” Though the definition of special damages is subjective, such damages are typically large, unique and unrecoverable.
Remedy for Emotional Distress
Understandably, defamation about a deceased loved one can cause survivors a great deal of emotional distress. Said emotional distress can drastically affect survivors’ quality of life and overall mental well-being. Because of this, advocates of tort protections for the deceased propose that survivors should be able to sue for emotional distress. Unfortunately, such claims are difficult to argue even when the defamed person is alive. For a family to recover on behalf of the deceased for emotional distress, the conduct that caused the harm must be intentional and particularly egregious. Even if a plaintiff can meet these standards, there is no guarantee the courts will side with him or her.
Defamation does happen, and quite often. To date, however, few state laws allow for remedies for survivors, despite the financial and emotional consequences libel of the deceased may cause.