The recent lawsuit filed by the Jackson Estate prompts the question of a deceased person’s rights regarding potentially defamatory material.

This article discusses how the tort of defamation, disparagement in contract and the moral rights of copyright holders might affect a case similar to the Jackson Estate’s lawsuit against HBO.

What is Defamation?

Since this topic has been covered in What is Defamation? Here’s a basic summary:

The tort of defamation involves communicating something untrue about a person that lowers or harms their reputation. Proving defamation requires:

  • communication to at least one other person;
  • identifying the ‘defamed’ person; and
  • judgement from a reasonable person’s view that the communication is harmful to the person or their reputation.

Context is important and many exceptions to defamation exist. Contact a defamation lawyer for more information.

Are the Dead Defamable?

The short answer: no.

Anyone who defames a deceased person is not liable under the Defamation Act 2005 (NSW), as the underlying common law principle asserts that ‘dead people can feel no shame or humiliation’.

That’s not to say the dead have no rights in relation to their reputation. Similar rights to defamation are available to the deceased in contract and copyright law.

Disparagement

Michael Jackson’s Estate recently filed a lawsuit against HBO citing the violation of a non-disparagement clause in a contract made between the performer and the cable network in its airing of a documentary detailing stories from the perspectives of the alleged victims.

The clause forbids ‘disparaging remarks’ concerning the ‘Performer or any of his representatives, agents, or business practices’.

The Difference Between Defamation and Disparagement

Disparagement is much broader than defamation: a communication only needs to be negative to be disparaging. As a result, a communication can be true and still constitute disparagement.

If a contract made contains a non-disparagement clause, the airing of a documentary containing ‘negative’ comments relevant to the clause may be enough to violate the contract, even if the disparaged individual is no longer alive.

In an Australian Context

Non-disparagement clauses are less frequent in Australia than in America and don’t have much prevalence in the Australian entertainment industry.

Typically such clauses are present in employment contracts and settlements, though there isn’t much case law governing this area. This makes the enforceability of non-disparagement clauses unclear, especially in relation to deceased persons.

Moral Rights

The Copyright Act 1968 (Cth) confers rights to creators of copyrighted works including musical works, cinematograph films and captured performances. A creator’s moral rights are:

  • receiving credit for their work;
  • not to have their work falsely attributed; and
  • not to have their work treated in a derogatory way.

This last right, the right of integrity, generally lasts for the creator’s life plus 70 years. The exception is films, which only last for the creator’s lifetime.

The Right of Integrity

The right of integrity protects a creator from a person ‘distorting, mutilating or materially altering the work in a way that prejudices the creator’s honour or reputation’.

Moral rights are another area rarely litigated in; the right of integrity has only been tested in a single case: Perez & Orz v Fernandez [2012] FMCA 2.

Perez v Fernandez

The case involved a DJ who had edited a song by the artist Pitbull and replaced the words at the beginning with audio that made it seem as though the DJ was the subject of the song.

In light of that case, a work distorted or manipulated to create a false representation may violate the moral rights of a creator.

Integrity in a Documentary Context

Only having seen the trailer for ‘Leaving Neverland’, an opinion on the violation of integrity is difficult to form.

The trailer displays photographs and video clips of Jackson with music and the alleged victims’ voices overlayed. Midway through the trailer a short video made by Jackson is played which appears to have stitched together a few parts of the clip, added a slight ‘static’ filter to convey a tape recording and overlayed with soft piano music.

This video itself would likely not violate any moral rights as:

  • copyright over ‘films’ only last for the creator’s lifetime; and
  • though not in its original form and portraying an uneasy atmosphere, the edited video does not appear to make any false representations.

However, if performances, musical works or images have been edited in a way that creates a ‘false misrepresentation’, then a creator – even after death – may have moral rights over it.

Final Thoughts

The tort of defamation does not apply to the deceased, but there are similar protections available under contract and copyright law which do. Though, the enforceability of such protections is unclear.

The longevity of defamation’s lack of application to the deceased is questionable as shown by developments in international law, such as the European Court of Human Right’s apparent support for the feelings of the deceased’s relatives falling within the scope of Article 8 of the European Convention on Human Rights.

The Convention imports obligations, including Art 8, from the Universal Declaration of Human Rights, which could affect that document and encourage reconsideration of laws relating to the deceased.

Our laws may not currently reflect our cultural customs to respect and not defame the dead, but that may form the basis for a conversation in the near future.

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Shaheen Hoosen

Shaheen is a Legal Tech Intern at LawPath as part of the Content Team. He is in his final year of a Bachelor of Laws with the degree of Bachelor of Information Technology (Major in Information Systems and Business Analysis) at Macquarie University. He is interested in Information Technology Law and Access to Justice.