Spreading false information about another can lead to a cause of action for defamation. When defamatory statements are published about a person after their death, does the person’s estate or their family member have a right to pursue a lawsuit on the deceased person’s behalf? Generally, the answer is no, but it depends on the law of the state the person resided in at the time of their death.
What is Defamation?
Defamation is the publication of a false statement of fact about an individual to a third party, which results in harm to the individual’s reputation. “Publication” simply means the statement was intentionally, recklessly, or negligently communicated to that third party. Defamation can occur in two forms: (1) libel, the written form of defamation; and (2) slander, the spoken form of defamation.
In New York, the plaintiff (the party bringing the defamation claim) must prove the following elements for a defamation claim:
- There was a false statement of fact about the plaintiff;
- The false statement was published to a third party;
- The person being accused was at fault and made the false statement negligently, recklessly, or intentionally; and
- The statement caused harm to the plaintiff, or was defamatory per se. Defamation per se applies to specific categories of statements where New York courts do not require proof of harm or damage to the individual. These four categories include:
- Statements accusing an individual of a serious crime;
- Statements that harm an individual’s trade, business, or profession;
- Statements imputing a loathsome disease to an individual; and
- Statements imputing unchastity to a woman.
Plaintiffs that are private figures only need to show the defaming party was negligent, while plaintiffs that are public figures must show the defaming party acted with actual malice. The defaming party may have defenses, including that the statement was true or that the statement was an opinion (not a statement of fact). Depending on your state, the defaming party may also have an “Anti-SLAPP” defense, which protects speech made on topics of public interest.
May a Deceased Person’s Family or Estate Bring a Post-Mortem Defamation Claim on their Behalf?
In New York, a cause of action for defamation does not survive death. Therefore, a deceased person’s family and estate may not bring a defamation action on behalf of the deceased person.
If there is a defamatory statement that involves the deceased person and other living people, the living person can bring a defamation claim, but only if the defamatory statement affects their own reputation. In that situation, the living person must satisfy the above elements based on their position as plaintiff (rather than the deceased person as plaintiff).
Are There Other Post-Mortem Rights?
If the deceased person is a “personality,” meaning his or her name, voice, signature, photograph, or likeness had commercial value at the time of death, that person has a post-mortem right of publicity. New York enacted the post-mortem right of publicity on in 2021, and has granted successors-in-interest the right to bring actions on behalf of the deceased personality. Under this law, if someone utilizes or exploits the commercial value of a deceased personality without authorization, family members or the estate may hold that exploiting person liable for violating the deceased person’s post-mortem right of publicity. This law also safeguards deceased personalities from unauthorized “digital replicas,” which is increasingly important as artificial intelligence makes it easier to digitally replicate someone’s likeness.
Conclusion
While there is no cause of action for decedents who have been defamed, there may be other avenues of justice. If the defamatory statement about the deceased person also provides a living relative with their own, direct defamation claim, the living person may have a cause of action. Further, family members and the estate of deceased “personalities” may bring post-mortem claims for violations of the right of publicity. For further guidance regarding post-mortem rights, reach out to a member of our team for next steps.
Contributions to this blog by Kara Manuud.
