Case Law, Strasbourg, Putistin v Ukraine: court recognises claims for defamation of the dead – Hugh Tomlinson QC

In the case of Putitstin v Ukraine (Judgment of 21 November 2013) the applicant complained of an article which, he said, defamed his dead father.  The Fifth Section accepted that the Article 8 of the Convention was engaged although the case failed on the facts because the applicant was only indirectly affected and the impact was remote.

Background

The applicant, Vladlen Putistin, was born in 1934 and lives in Kiev. The case concerns Mr Putistin’s complaint about defamation of his father, a former Dynamo Kiev football club player, who took part in 1942 during the Second World War in the legendary “Death Match” between the Start football team, involving some of the Dynamo Kiev footballers, and a team from the German Luftwaffe, “Flakelf”.

The Ukrainians won, against the odds (including it is said unfair SS refereeing), and the team allegedly suffered reprisals; some of the players were arrested and taken to a local concentration camp where four of the players were later executed.

In April 2001 the newspaper Komsomolska Pravda published an article reporting on a film which was to be made about the match. Mr Putistin considered that his and his father’s reputation had been discredited because of the suggestion in the article that some of the Dynamo Kiev footballers, among them by implication his father, had collaborated with the Gestapo or the police.

Mr Putistin complained about the national courts’ refusal to order a rectification of the information about his father in the article. He complained in particular that the courts found that he had not been directly affected by the publication: his father was not mentioned in the text, and it was not possible to read his name on the photograph of the match poster published along with the article.

The Court examined the applicant’s complaints under Article 8 (right to respect for private and family life).

Judgment

The Court noted that the applicant was, in substance, complaining of a breach of the right to the protection of his and his family’s reputation [27]. It recalled that a person’s reputation falls within the scope of his or her private life [32].

This case raised the question of whether damage to the reputation of an applicant’s family can be considered an interference with his or her private life.  It accepted that

the reputation of a deceased member of a person’s family may, in certain circumstances, affect that person’s private life and identity, and thus come within the scope of Article 8. [33]

The question of whether an action is brought by the defamed person himself or by his heir is relevant for assessing the proportionality of an interference [34].

The article in issue was one of a series of reports in the Kiev newspapers about the events of the “Death Match” and was described events of general interest to the Ukrainian readers’ community [36].  The applicant’s father’s name appeared in the historical match poster photo which was reproduced in the article but in print that was too small to be legible [36].

The Court pointed out that the article did not refer to the applicant’s father.

In order to interpret the article as claiming that the applicant’s father had collaborated with the Gestapo, it would be necessary for a reader to know that the applicant’s father’s name had appeared on the original poster for the match. [37].

As a result, although the Court accepted that the applicant was affected by the article, this was only in an indirect manner and so the level of impact was “quite remote” [38]

The domestic courts had to have regard to the rights of the newspaper and the journalist.  The article was neither provocative nor sensationalist:

Against the newspaper’s right to freedom of expression, the remoteness of the interference with the applicant’s Article 8 rights had to be weighed. [39]

The applicant’s Article 8 rights were “marginally affected and only in an indirect manner” and the domestic courts had not failed to strike the correct balance [40].  As a result, there was no violation of Article 8.

Comment

While unsurprising on its facts, this decision opens up the possibility that Article 8 may, in appropriate circumstances, permit a claim to be brought for “defamation of the dead”.  In this case the applicant’s father was not named and only a person with detailed knowledge of the history would have understood the article to be alleging that he had collaborated with the Gestapo.  It seems clear, however, that a serious defamatory allegation against a recently deceased person could constitute a breach of the family’s Article 8 rights. This is, potentially, a radical new development.

In the UK, this issue has been the subject of a long running campaign by Margaret and James Watson, the parents of schoolgirl Diane Watson, 16, who was stabbed to death 20 years ago after a playground row at her Glasgow school. It was reported that Margaret and James Watson’s other child, 16-year-old Alan, later took his life after reading an article which alleged his sister was a bully.  On 10 January 2011, the Scottish government published a consultation paper on “Defamation and the Deceased” [pdf] but has not proposed any change in the law.  In June 2012, MPs rejected an attempt to amend the Defamation Bill to permit the a dead person’s spouse or partner, relatives, siblings or offspring to sue the publisher of an article they considered defamatory up to 12 months after the death.

These arguments may now have been overtaken by the Court of Human Rights’ expansive interpretation of Article 8.  There would be a strong argument that, in a case like that of the Watsons, the state has a positive obligation to protect the Article 8 rights of the parents and siblings of a deceased child from attacks on the child’s reputation.