Defamation of a Deceased Person — Can the Family Sue?
A harmful publication about a person who has passed away is a source of deep pain for the family, who seek to protect their memory and good name. But here the law differs substantively from defamation of a living person: the law regulates 'defamation of the dead' in a separate section, with a significant limitation. This guide explains what the law provides regarding a harmful publication about a deceased person, why the family generally has no civil cause of action, and when and by what means action can still be taken.
1. Section 5 — Defamation of the Dead
Section 5 of the Act establishes a unique rule: defamation published about a person after their death is treated as defamation of a living person — that is, the publication itself is considered defamation — but it does not give rise to a civil action or a private complaint. This means: although the publication is defined as defamation, the law does not grant the family the right to sue for civil damages or to file a private complaint over the harm to the deceased's memory. This is a substantive difference from a publication about a living person, where a full civil cause of action arises. The rule is meant to balance protecting the memory of the dead against flooding the system with claims.
2. Why There Is No Civil Cause of Action
The rationale: the right to a good name is a personal right of the person themselves, and it is difficult to 'bequeath' it like an ordinary property right. The legislature chose not to allow family members to sue for civil compensation on behalf of the deceased for harm to their memory. That said, the law does not ignore the harm entirely — it recognizes that this is defamation, and certain family members (spouse, parent, child, sibling) are regarded as 'injured' for certain purposes in the law, mainly in the criminal-public sphere. But in the civil sphere — the path to a damages claim for harm to the deceased themselves is blocked.
3. When Action Is Still Possible
There are situations in which action is still possible. First and foremost: if the publication, even though it concerns the deceased, also independently harms the living family members — for example, attributing to them a wrongful act, or harming their own good name — then they themselves may have a personal cause of action, which is not limited by Section 5. Second, in the criminal-public sphere other tools may exist. Third, one can sometimes act through extra-judicial channels — approaching a platform to remove harmful content. The distinction between harm to the deceased (a blocked cause of action) and independent harm to the living (a possible cause of action) is the key.
4. What Is Worth Doing
If defamation was published about a family member who has died: first, understand the limitation — a civil claim on behalf of the deceased for harm to their memory is generally not possible. Second, carefully examine whether the publication also harms you, the living, personally and independently — if so, you may have your own cause of action. Third, consider a direct approach to the platform or publisher requesting removal, which is sometimes effective even without a proceeding. Fourth, consult a lawyer to assess the possible paths in the specific circumstances. Although the classic civil path is blocked, you are not always left helpless.
Checklist
- Understand: a civil claim on behalf of the deceased for harm to their memory is generally blocked (Section 5)
- Examine whether the publication also harms you, the living, independently
- If you suffered personal harm — you may have your own cause of action
- Consider a direct approach to the platform to remove the content
- Check whether tools exist in the criminal-public sphere
- Consult to assess the paths in the specific circumstances
Common Pitfalls
- Assuming the family can sue for civil compensation on behalf of the deceased
- Missing independent harm to the living family members (a possible cause of action)
- Ignoring extra-judicial removal channels
- Confusing recognition of the publication as defamation with the existence of a civil cause of action
- Giving up entirely without examining alternative paths
שאלות ותשובות
Can I sue over defamation published about a relative who died?
As a rule, not in the civil sphere. Section 5 provides that a publication about the dead is considered defamation, but it does not give rise to a civil action or a private complaint for harm to the deceased's memory.
Why can't compensation be claimed on behalf of the deceased?
Because the right to a good name is personal, and the legislature chose not to allow 'bequeathing' a civil cause of action for harm to the memory of the dead. The publication is recognized as defamation, but without a civil cause of action.
When can action still be taken?
Mainly if the publication also independently harms the living family members (attributing to them a wrongful act) — then they may have a personal cause of action. You can also consider approaching the platform for removal.
Is there a way to remove a harmful publication about the deceased?
Sometimes yes, through extra-judicial channels — approaching the platform or publisher with a removal request. Even if the civil path is blocked, you are not always left helpless.