The Spectator [London, England]
October 19, 2021
By Andrew Tettenborn
‘You can’t libel the dead’ is burned into the consciousness of any serious journalist or writer. It provides much-needed comfort: however tactful you have to be about the living, once someone has died you can say what you like about them without getting sued.
Or can you? Seven years ago the European Court of Human Rights dropped a worrying throwaway remark that this might be unacceptable because allowing untrammelled comment about a deceased person might infringe the human rights of his family. Last week, in a disconcerting decision that seems to have gone entirely unreported in the media (you can read the official report here), that same court built on its earlier suggestion and at a stroke gave publishers a whole new worry.
In 1999 and 2002, a Slovak Catholic priest of unsavoury habits was convicted of the sexual abuse of a child and public indecency. He died in 2006. In 2008 three tabloids followed up a rumour that at the time of the convictions his church had quietly pulled strings to keep him out of prison. Sensing an interesting scandal, they wrote up the affair in fairly graphic and lurid detail.The ethical case for regulating what can be said about the dead is highly dodgy
The priest was, of course, beyond any earthly help. But his mother was still alive, and she sued the papers for the distress they had caused her. The Bratislava courts rebuffed her claim, largely on the basis that the tabloids’ story had been largely true and published in good faith. She then complained to Strasbourg. The judges there thought very differently. There had, they said, been no social interest in publishing the story or sensationalising it; sources had not been exhaustively checked; value judgments had been presented as fact (whatever that meant); and while the press needed protection as a public political watchdog, no great worth should be attached to reports aimed at satisfying readers’ curiosity. And although the story was not about the mother, the reputation of her son had to be deemed part and parcel of her private life. She had therefore been deprived of her own human right to a private life.
As a development in human rights law this was perhaps foreseeable. Strasbourg has always been sniffy about the tabloid press and favoured those who prefer to avoid the limelight. The German media found this to their cost in 2004 when they published pictures of Princess Caroline of Monaco. But the unequivocal extension of this protection beyond the grave should concern us all.
For one thing, this is not simply an obscure legal event occurring in a far country of which we know little. There is a fair chance that our own courts, bound as they are to take note of Strasbourg decisions, will read this one and apply it, allowing relatives and friends to sue here in at least some cases for substantial damages when faced by posthumous attacks on their loved ones.
Secondly, it is all very well for judges cloistered in Strasbourg to demand the meticulous checking of stories, careful labelling of value judgments as such, and so on. But one suspects they read papers such as the Guardian or the Frankfurter Allgemeine. If you move in those circles, it may not be apparent that the kind of processes these papers use may not be fit or appropriate for the entirely different world of the Sun or Bild.
Thirdly, the effect of this will be to throw a substantial monkey-wrench into the machinery of journalism, biography and writing. Hitherto, if you wrote something potentially scurrilous, all you had to do was run a quick check on the people you had named. If they were alive you were on notice, and if they weren’t you didn’t need to worry. Now that safety may well be gone. Under this brave new regime, would the publishers’ lawyers have approved such things as the unexpurgated Chips Channon diaries, with their racy mixture of barbs and malice that undoubtedly distressed the children of the now-dead victims? One wonders.
If all this was in a good moral cause one might swallow it. But the ethical case for regulating what can be said about the dead is highly dodgy. Your moral right while alive to prevent me smirching your reputation or spilling the beans on your private life is quite rightly opposable to my right to say what I want about you. But licensing you to sue me for attacking the reputation of a dead relative, or disclosing their intimacies, is different. It is nothing to do with your right to privacy, save in the distended sense of that word favoured by human rights lawyers, who these days use it to cover almost anything that seriously distresses you. You are essentially claiming a right not to be made uncomfortable by what I say. But free speech is there precisely to enable me to say what discomforts you.
More generally, this is yet another development that ought to lead us to think seriously about the European Convention on Human Rights. What we now have is a demand from an unelected court that newspapers, writers and others must carefully regulate what they say about those who are no longer alive, and the tone in which they say it. Moreover, because this is a matter of human rights this must happen whatever voters or elected politicians may think.
By any indication this is a gross overreach of the idea of human rights, which ought to be about matters that are genuinely too important to be left to the democratic process rather than minor questions of distress caused by the tone of a tabloid article. We have heard from Dominic Raab that the approach of this government to human rights remains open. With cases like this, those who regard it as axiomatic that we should stay in the Convention are going to have some serious explaining to do.