Can you sue a dead person for libel or slander?
November 12, 2013 8:45 AM Subscribe
I am writing a novel (and hoping to publish it under a pseudonym), and I was hoping Metafilter's legal experts could provide some guidance: can you sue a dead person for slander and/or libel?
So I am plotting out a novel in which a character dies, and using an "in case of death, send out these e-mails" forwarding service, sends out, to several people, e-mails that can be considered slanderous (or libelous?).
The question that comes to mind is whether the dead man's estate can be sued for slander and/or libel. I'm hoping so, because otherwise I'd have to rethink that plot point. Assuming that all of the potential legal action would be in the United States, and none of the e-mails are sent to a recipient residing outside of the United States:
1) Can a dead person (or their estate) be sued for slander and/or libel for e-mailing the sort of message that ordinarily would be considered slanderous and/or libelous?
2) Is there a practical difference between being found liable for slander and being found liable for libel? Or does that merely determine the amount of damages?
3) Is there any existing case law about this matter I could cite? Obviously, any detailed discussion of the law in my novel would just show how far out of my depth I am, but I might want to make a passing reference to it in the dialogue.
4) As a practical matter, it is my understanding that libel cases are next to impossible to win in the United States. Does the same hold true with slander cases? (Or am I wrong about libel cases in the U.S.?)
I am not married to this plot point, so if it turns out that the dead person (or their estate) could not be held liable, feel free to suggest a variation that might work instead, if you can think of one. Thanks!
So I am plotting out a novel in which a character dies, and using an "in case of death, send out these e-mails" forwarding service, sends out, to several people, e-mails that can be considered slanderous (or libelous?).
The question that comes to mind is whether the dead man's estate can be sued for slander and/or libel. I'm hoping so, because otherwise I'd have to rethink that plot point. Assuming that all of the potential legal action would be in the United States, and none of the e-mails are sent to a recipient residing outside of the United States:
1) Can a dead person (or their estate) be sued for slander and/or libel for e-mailing the sort of message that ordinarily would be considered slanderous and/or libelous?
2) Is there a practical difference between being found liable for slander and being found liable for libel? Or does that merely determine the amount of damages?
3) Is there any existing case law about this matter I could cite? Obviously, any detailed discussion of the law in my novel would just show how far out of my depth I am, but I might want to make a passing reference to it in the dialogue.
4) As a practical matter, it is my understanding that libel cases are next to impossible to win in the United States. Does the same hold true with slander cases? (Or am I wrong about libel cases in the U.S.?)
I am not married to this plot point, so if it turns out that the dead person (or their estate) could not be held liable, feel free to suggest a variation that might work instead, if you can think of one. Thanks!
Just to keep things clear: slander is verbal ("He stood on that podium and called me a tax cheat!") and libel is written ("He wrote a letter to the editor saying I cheated on my taxes!"). So, your mass emails would be libel not slander.
posted by easily confused at 8:51 AM on November 12, 2013 [2 favorites]
posted by easily confused at 8:51 AM on November 12, 2013 [2 favorites]
I am a lawyer, but not a litigator, and certainly not your lawyer. Hopefully some of my esteemed colleagues at the bar who litigate will have further thoughts. Libel and slander are torts under the law, and I see no reason why an estate would be immune from suit for libel. The estate would not be immune from other torts--e.g., if someone was injured on the deceased's property.
You might want to give some thought to how probate would come into play. For instance, if the deceased had a simple or a self-probating will, it might go through probate quickly. The estate's assets might be distributed before a legal suit for libel could be made. Alternatively, if the deceased had funded trusts before death, the trusts might be excluded from the estate on death and there could be little in the was of assets for the suit. The law of trusts and estates varies greatly among states; I have absolutely no idea how these fact patterns would play out where you are (or where I am, for that matter). But the good news is that this gives you free rein to improvise. Maybe in your fictional jurisdiction, trusts set up in vivos (i.e., outside the will) are not included in the estate, unless they were set up in the year prior to death, or funded after the cause of action had arisen, or where there was an intentional tort (perhaps including the pre-loaded email).
The difficulty with defamation suits is that public figures generally have to prove actual malice; everyone has to show damages (as in all torts); and truth is a good defense to the claim. Plus, as a victim of defamation, you may not want to litigate your alleged cannibalism, or incestuous relationship, or embezzling and give more attention to it.
Good luck with your novel.
posted by Admiral Haddock at 9:12 AM on November 12, 2013 [3 favorites]
You might want to give some thought to how probate would come into play. For instance, if the deceased had a simple or a self-probating will, it might go through probate quickly. The estate's assets might be distributed before a legal suit for libel could be made. Alternatively, if the deceased had funded trusts before death, the trusts might be excluded from the estate on death and there could be little in the was of assets for the suit. The law of trusts and estates varies greatly among states; I have absolutely no idea how these fact patterns would play out where you are (or where I am, for that matter). But the good news is that this gives you free rein to improvise. Maybe in your fictional jurisdiction, trusts set up in vivos (i.e., outside the will) are not included in the estate, unless they were set up in the year prior to death, or funded after the cause of action had arisen, or where there was an intentional tort (perhaps including the pre-loaded email).
The difficulty with defamation suits is that public figures generally have to prove actual malice; everyone has to show damages (as in all torts); and truth is a good defense to the claim. Plus, as a victim of defamation, you may not want to litigate your alleged cannibalism, or incestuous relationship, or embezzling and give more attention to it.
Good luck with your novel.
posted by Admiral Haddock at 9:12 AM on November 12, 2013 [3 favorites]
Just to keep things clear: slander is verbal ("He stood on that podium and called me a tax cheat!") and libel is written ("He wrote a letter to the editor saying I cheated on my taxes!"). So, your mass emails would be libel not slander.
At journalism school we were taught the critical part of libel is not simply that the wounding words were "written" somewhere, but that they were published somewhere.
Which, as I recall, immediately raised interesting debates about the definition of "published" - and the famous example of Oscar Wilde who argued he was libeled by offensive words written on a calling card addressed to him and left at his (Oscar's) private club.
Had the card with the nasty words written on it been personally handed to Oscar - Wilde could not have argued that he had been libeled. (Because no one else would have seen them). And had the card been enclosed in an envelope, we were told, the written words would also not have constituted libel. It was because the written words (calling Wilde a sodomite) were visible to other parties (which was the intention of the writer), that the slur was counted as a published libel.
posted by Jody Tresidder at 10:17 AM on November 12, 2013
At journalism school we were taught the critical part of libel is not simply that the wounding words were "written" somewhere, but that they were published somewhere.
Which, as I recall, immediately raised interesting debates about the definition of "published" - and the famous example of Oscar Wilde who argued he was libeled by offensive words written on a calling card addressed to him and left at his (Oscar's) private club.
Had the card with the nasty words written on it been personally handed to Oscar - Wilde could not have argued that he had been libeled. (Because no one else would have seen them). And had the card been enclosed in an envelope, we were told, the written words would also not have constituted libel. It was because the written words (calling Wilde a sodomite) were visible to other parties (which was the intention of the writer), that the slur was counted as a published libel.
posted by Jody Tresidder at 10:17 AM on November 12, 2013
Pick up a hornbook, such as Examples and Explanations: The Law of Torts, and study the section on defamation, which will include libel and slander. Details will vary on jurisdiction, but the broad outlines, to the extent that they would matter in a novel, will be pretty similar across the US.
Bear in mind that, in the US, the plaintiff in a defamation suit has the burden to prove the falsity of the defendant's statements. This makes it a less appealing jurisdiction for a libel suit than the UK, in which the defendant may use truth only as an affirmative defense.
As such, be aware of libel tourism and the UK's Defamation Act 2013.
posted by Sticherbeast at 10:41 AM on November 12, 2013 [1 favorite]
Bear in mind that, in the US, the plaintiff in a defamation suit has the burden to prove the falsity of the defendant's statements. This makes it a less appealing jurisdiction for a libel suit than the UK, in which the defendant may use truth only as an affirmative defense.
As such, be aware of libel tourism and the UK's Defamation Act 2013.
posted by Sticherbeast at 10:41 AM on November 12, 2013 [1 favorite]
Jesse Ventura is suing the widow of Chris Kyle, who wrote American Sniper, for defamation. The guy claimed he'd punched Ventura for badmouthing the US Navy in his book. Perhaps it would be easier to make a defamation claim stick than libel or slander.
posted by soelo at 2:56 PM on November 12, 2013
posted by soelo at 2:56 PM on November 12, 2013
Soelo, libel and slander are forms of defamation. Check out page 16 of Ventura's initial complaint against Kyle.
posted by Sticherbeast at 3:09 PM on November 12, 2013 [1 favorite]
posted by Sticherbeast at 3:09 PM on November 12, 2013 [1 favorite]
Someone certainly can file a lawsuit against the estate of the dead person, but whether it would win is another story. To be successful, the words would have to be untrue, intentional and damaging. The defense could easily say he was old and sick or under some influence, and can't be held responsible for those reasons. And what potential for damage is there in an unpublished note written to some acquaintance? Lastly, there has to be some remedy available. You can't get a retraction from a dead man, and you would have to show financial damages to get a financial settlement. I think.
At journalism school we were taught the critical part of libel is not simply that the wounding words were "written" somewhere, but that they were published somewhere.
I was taught the same thing. That's why defamatory radio broadcasts are technically libel.
posted by gjc at 4:51 AM on November 13, 2013
At journalism school we were taught the critical part of libel is not simply that the wounding words were "written" somewhere, but that they were published somewhere.
I was taught the same thing. That's why defamatory radio broadcasts are technically libel.
posted by gjc at 4:51 AM on November 13, 2013
And what potential for damage is there in an unpublished note written to some acquaintance? You can't get a retraction from a dead man, and you would have to show financial damages to get a financial settlement. I think.
"Publication" in the context of defamation is a term of art with a specific meaning. It basically just means communication to a third party. If A dies, and then A's estate sends out emails to B, C, and D saying that E is a fraud, then those emails have been published to B, C, and D. It doesn't matter that Little, Brown weren't involved.
As for damages, let's say that B, C, and D believe these emails, and so they drop all of E's business and spread this story further. Those are forms of harm. Damages could be calculated with relation to that harm.
You should also be aware of libel per se. At common law, depending on the jurisdiction, certain categories of statements are, if false, presumed to be defamatory, with no further need to prove special damages.
I was taught the same thing. That's why defamatory radio broadcasts are technically libel.
Courts are split as to whether defamatory radio broadcasts are libel or slander. The key difference is usually over the interpretation of the idea of permanence - whether the communication was in some form of fixed medium.
Libel and slander were invented before radio was invented. In an earlier age, oral communication was impermanent, and print communication was permanent. Nowadays, the lines are obviously much more blurry.
Regardless, publication is a requirement for both slander and libel.
posted by Sticherbeast at 5:49 AM on November 13, 2013
"Publication" in the context of defamation is a term of art with a specific meaning. It basically just means communication to a third party. If A dies, and then A's estate sends out emails to B, C, and D saying that E is a fraud, then those emails have been published to B, C, and D. It doesn't matter that Little, Brown weren't involved.
As for damages, let's say that B, C, and D believe these emails, and so they drop all of E's business and spread this story further. Those are forms of harm. Damages could be calculated with relation to that harm.
You should also be aware of libel per se. At common law, depending on the jurisdiction, certain categories of statements are, if false, presumed to be defamatory, with no further need to prove special damages.
I was taught the same thing. That's why defamatory radio broadcasts are technically libel.
Courts are split as to whether defamatory radio broadcasts are libel or slander. The key difference is usually over the interpretation of the idea of permanence - whether the communication was in some form of fixed medium.
Libel and slander were invented before radio was invented. In an earlier age, oral communication was impermanent, and print communication was permanent. Nowadays, the lines are obviously much more blurry.
Regardless, publication is a requirement for both slander and libel.
posted by Sticherbeast at 5:49 AM on November 13, 2013
1) Can a dead person (or their estate) be sued for slander and/or libel for e-mailing the sort of message that ordinarily would be considered slanderous and/or libelous?
Yes, but you'll have huge evidentiary problems. You're going to need to prove something about the state of mind of the decedent, and they being dead, that could be really difficult. The defendant estate will also have problems, but the burden of proof is both on the plaintiff and really high.
2) Is there a practical difference between being found liable for slander and being found liable for libel?
No. Which is why most jurisdictions simply collapse the distinction into the broader tort of defamation. There is no inherent difference in damages, though as libel tends to reach a wider audience than slander, there is more potential there.
3) Is there any existing case law about this matter I could cite?
Certainly! But you'd need a jurisdiction and a date before anything could be looked up. But that's a level of detail you probably don't need to get into unless you're writing a legal thriller. Which I don't recommend you do unless you're a lawyer, because the results tend to be less than spectacular otherwise.
4) As a practical matter, it is my understanding that libel cases are next to impossible to win in the United States. Does the same hold true with slander cases?
Again, there's no practical difference. Defamation is defamation, whether written or verbal. Indeed, if I were to draft a complaint here, it would simply be for defamation, not limiting itself to one or the other.
Perhaps it would be easier to make a defamation claim stick than libel or slander.
Defamation is libel or slander. The latter are subsets of the former. The reason we use the former is that it includes both spoken and written communications, whereas the latter are specific to one format each.
posted by valkyryn at 9:14 AM on November 15, 2013
Yes, but you'll have huge evidentiary problems. You're going to need to prove something about the state of mind of the decedent, and they being dead, that could be really difficult. The defendant estate will also have problems, but the burden of proof is both on the plaintiff and really high.
2) Is there a practical difference between being found liable for slander and being found liable for libel?
No. Which is why most jurisdictions simply collapse the distinction into the broader tort of defamation. There is no inherent difference in damages, though as libel tends to reach a wider audience than slander, there is more potential there.
3) Is there any existing case law about this matter I could cite?
Certainly! But you'd need a jurisdiction and a date before anything could be looked up. But that's a level of detail you probably don't need to get into unless you're writing a legal thriller. Which I don't recommend you do unless you're a lawyer, because the results tend to be less than spectacular otherwise.
4) As a practical matter, it is my understanding that libel cases are next to impossible to win in the United States. Does the same hold true with slander cases?
Again, there's no practical difference. Defamation is defamation, whether written or verbal. Indeed, if I were to draft a complaint here, it would simply be for defamation, not limiting itself to one or the other.
Perhaps it would be easier to make a defamation claim stick than libel or slander.
Defamation is libel or slander. The latter are subsets of the former. The reason we use the former is that it includes both spoken and written communications, whereas the latter are specific to one format each.
posted by valkyryn at 9:14 AM on November 15, 2013
This thread is closed to new comments.
posted by jayder at 8:49 AM on November 12, 2013 [1 favorite]