Is Speaking Ill of The Dead Considered Defamation?

"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:

  1. 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.
  2. 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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Comments

  1. says

    Very interesting post today – I would expect the same result here in Virginia as I believe that defamation is a personal cause of action which does not survive death to begin with, let alone that a dead person would have a claim post-death.

  2. Martha Ames says

    I think it is time for California to consider extending defamation laws to the deceased once again. Let’s use Michael Jackson’s death as an example. Should his family and children in particular have to hear the vile lies about their relative and father even now? In today’s world of irresponsible media where a story can circle the globe in minutes, I think it is time to take a new look at this issue for everyone’s sake.

    • N.Jackson says

      I agree! His reputation is still being defamed and his children get the brunt of the pain when people say things and file suits for monetary gain. They should absolutely have the right to Sue. Watch how quickly those people would shut uppp

  3. Margaret says

    You maybe interested in knowing the government has taken up this subject and has a cosultation paper on their website “defamation of the decased” which I personally believe shows that there are some Countries who fully recognise the need to end injustice that families of the deceased are being forced to endure at the hands of some sections of the mass media, who know they can publish malicious falsehoods about the deceased with impunity.Shame on those Countries who will not give families of the their basic human right to formally challenge such spurious publication.

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