Libelling dead people

[Greg Quinn]

I'm shooting a documentary; one interviewee used fairly harsh language to describe some people who have now passed away. Am I correct in thinking that, at least in the USA, you cannot libel a dead person?

On a similar theme and out of curiosity, is it permissable to have an actor in a movie play a real person who is now dead, without permission from their estate?

[Chris Barcellos]

I haven't researched the issue, so this is law school 20 years ago talking, but my educated guess is that you if you "publish" untruths, knowing they are untrue, you could be liable to the estate of the person for damages. There are a bundle of rights that pass to the estate of a person, some of them being the image and reputation of the deceased.

There are defenses available to media producers. For instance, if you are producing a documentary, someones statement in the documentary could be examined by the documentary itself for truthfulness. Too, the statement could be newworthy and publishable as news.

Finally, truth is a defense to any libel or slander action, so fact checking is important in any production.

[Greg Quinn]

Thanks Chris, sounds like it's not simply a case that one can't libel dead people. A good example of this is the Presley estate, which seems to have strict control over Elvis's image, but I didn't know they could take action against people who make libelous statements about him.

There's an interesting libel checklist here which states:

There is little reason to be concerned with statements or other material reflecting badly on dead persons because the law only protects "the memory of the dead," giving no cause of action to decedents.