ECtHR judgment may have significant consequences for domestic libel and privacy law
In what appears to be on its face a complaint brought in privacy, the recent ECtHR judgment in ML v Slovakia 34159/17 (14 October 2021) challenges the principle that actions cannot be brought for defaming the dead.
The applicant’s late son, who had been a Roman Catholic priest, had been convicted in 1999 of sexual abuse in relation to an attempt to have non‑consensual oral sex with a minor, and in 2002 of disorderly conduct (consensual oral sex with an adult man in a public place). Those criminal convictions had become spent in 2001 and 2003 respectively. The man died in 2006.
In 2008 three Slovakian tabloid newspapers published articles covering the convictions and death (suicide was alleged by the newspapers but denied by the applicant mother). The articles purported to investigate intervention by the Catholic Church in respect of the priest’s sentencing.
The applicant mother complained that the Slovakian courts’ dismissal of her action against the newspaper publishers – the action being for post-mortem protection of her son’s integrity and protection of her own integrity – amounted to a violation of her right to respect for her private life under Article 8. The applicant’s case relied on, among other matters, assertions of inaccuracy in the details published about her son’s life and about the manner of his death.
Holding the articles to have been sensationalist and poorly researched, the Court found for the applicant mother, finding that: “However, it follows from what has been said above that the domestic courts failed to carry out a balancing exercise between the applicant’s right to private life and the newspaper publishers’ freedom of expression in conformity with the criteria laid down in the Court’s case-law.”
The Court’s judgment intermingles the issues of the dead son’s reputation and the applicant mother’s privacy. The Court recalled that “…dealing appropriately with the dead out of respect for the feelings of the deceased’s relatives falls within the scope of Article 8 of the Convention.”
In respect of the facts of this case the Court held further that, “…the distorted facts and the expressions used must have been upsetting for the applicant and that they were of such a nature as to be capable of considerably and directly affecting her feelings as a mother of a deceased son as well as her private life and identity, the reputation of her deceased son being a part and parcel thereof…”
This ECtHR judgment builds on others, notably Putistin v Ukraine, no. 16882/03, that suggest that harm caused to the reputation of deceased persons may be actionable, at least by relying on the Article 8 rights of the living to found a cause based on the reputation of the dead.