Under common law and according to the definition of this defamation, deceased individuals cannot be defamed. Defamation is defined as an act or statement that damages one’s reputation. The dead do not have reputations to damage. The memory of a deceased person can be damaged, but this is not addressed under the tort of defamation.
Survivors or descendants of the dead have no legal claim on behalf of a deceased relative’s good name, nor can they collect on behalf of their own interests relative to that person’s reputation. Likewise, the estate of a deceased person cannot be liable for the defamation of the dead. Survivors, relatives or friends of the deceased may, however, have a cause of action if the defamation reflects on their own reputations and they have, in fact, been defamed by the statements.
Generally, pending court action on a defamation claim does not survive the death of the plaintiff. However, this can vary based on a state’s survival statute. For example, the Ohio Revised Code 2311.21 states that actions for libel and slander will end upon the death of the plaintiff. This was upheld in Oakwood v. Makar, 11 Ohio pp.3d 46 (1983). However, in Georgia, common law has held that a pending libel action may be continued by survivors upon the death of the plaintiff. Johnson v. Bradstreet Co., 13 S.E. 250, 252 (Ga. 1891). You will need to check your state’s survival statute to understand your legal rights.
The attorneys at Minc Law can help you determine if you or a loved one has a cause of action related to this tort. Call (216) 373-7706 for more information.
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