There has never been a shortage of opinions and insults in society, but when negative opinions are stated publicly and cause damage to someone’s character and reputation, they can rise to the level of defamation and thus can result in legal action taken by the wronged party. Protection from defamation, however, since it is related to the protection of a person’s reputation, is only provided for the living and thus leaves the reputations of the deceased susceptible to injury.
A famous example involves Michael Jackson and the 2019 documentary “Leaving Neverland”. John Branca recounts how Michael Jackson successfully defended himself against defamation during life, but his estate was not able to pursue recovery for possible defamatory statements made in “Leaving Neverland” as most states offer no recovery for libel and slander, the two most common types of defamation, for someone who is deceased. In this case, those managing Michael Jackson’s estate were not able to pursue a defamation suit.
The reason most states don’t allow for defamation suits on behalf of the deceased is that libel and slander laws exist to protect people’s reputation and good standing within communities, which affects their ability to earn livings. Once people pass away, they no longer need to earn livings and are thus unaffected by reputation or community standing. The memory of a dead person can be tarnished, but most defamation laws do not address a person’s memory, just the reputation of the person.
The law enters a gray area when a deceased person leaves an estate where the ability of the estate to earn money is highly dependent upon the deceased party’s reputation, or rather the memory of that person. For instance, if an author or musical artist suffers reputation damage after death, that author’s or artist’s works may not sell as well in the future, thus affecting the earnings of the estate from royalties. This was the concern of Michael Jackson’s estate lawyers in the above situation, but the state laws to which they were subject did not allow for recovery for defamation. Some state laws, such as the Texas law governing libel, have allowances for damage to a person’s memory after they are deceased.
Another gray area exists when people have court actions on defamation claims pending at the time of their deaths. In general, a descendant of a dead person has no right to that relative’s good name and thus no legal reason to collect on the deceased person’s behalf should the pending action be permitted to continue through the courts. Thus, many states terminate actions upon the death of the plaintiff. Some states, however, allow for the pending action to be continued by survivors of the deceased.
As with many legal topics, that of defamation comes with many gray areas, especially in the case of tarnishing the reputation of someone who is deceased. Though most courts do not allow defamation suits on behalf of deceased parties, it is best to check with someone who specializes in that area of law if you are considering taking such an action.