"De mortuis nil nisi bonum"
We’ve all heard the phrase "speak no ill of the dead," right? It’s a phrase that’s been passed down through the ages and I think most times people speak rather favorably about the departed. But not always . . .
Now, admittedly, I hate to write about such a morbid topic around the holidays (I suppose I should have written this around Halloween) but It’s a topic that seems to come up enough that it merits a post: defamation of a deceased person.
It comes up in one of two ways usually:
- A potential defendant has made critical statements about a person who has recently died and they are concerned that members of the dead person’s family will sue them for defamation.
- A member or representative of an estate (or family member) discovers several harsh and potentially defamatory statements about their loved one on the Internet. Typically, the representative of the estate wishes to preserve the loved one’s good name for commercial reasons.
In any event, in California a cause of action does not lie for defamation of a dead person plain and simple. Saucer v. Giroux (1929) 54 C.A. 732, 733, 202 P. 887; Kelly v. Johnson Publishing Co. (1958) 160 C.A.2d 718, 723, 325 P.2d 659. The reason is that Defamation is a tort which is a civil wrong with respect to a person’s reputation. Dead people don’t have a reputation in the eyes of the law. For this reason, surviving relatives will not prevail if they bring a cause of action for defamation to protect the good name of the deceased. Nor can a defamation action lie to protect an estate.
I suppose this is hardly surprising. What is interesting, however, is that defaming a dead person used to be a crime in California. Under former Penal Code sections 248 and 249, if one published a statement that "tended to blacken the memory of one who is dead," it was a crime! It’s almost hard to believe, but it’s true.
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