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Last Updated: Tuesday, 28 June, 2005, 12:24 GMT 13:24 UK
Can you say anything about the dead?
By Duncan Walker
BBC News

Lurid claims about Princess Diana have made the front pages once again. But what are the restrictions on what you can say about people who have died?

Princess Diana, as everyone now knows, had a colourful life. Yet eight years after her death, stories - often from "close friends and acquaintances" - continue to fuel biographies and newspaper headlines.

This week alone has seen claims that Diana slept with JFK Jnr within hours of meeting him, "in a moment of pure lust". The Kennedy heir's performance, says her alternative therapist Simone Simmons, was worthy of a 10.

First among the usual considerations that an author, such as Ms Simmons, would face when wanting to make explosive claims about people is that of libel. But in recounting her allegations about Diana and Kennedy, both famously dead, the lawyers need not be involved at all.

As the saying goes, "you can't libel the dead". So does that mean hypothetically one could say anything one wanted about someone who had died?

'Analysing history'

The problem for families upset by claims about their dead relatives is that "you can't stop history", says media lawyer Duncan Lamont of solicitors Charles Russell.

Of their dead relative, there are no circumstances under which a family could sue for libel
Duncan Lamont - media lawyer

While the living can fight tooth and nail to keep their good name, there is little that can be done - in England and Wales at least - once they have passed on.

"You can't protect reputations in perpetuity because it would harm the prospects of analysing history," says Mr Lamont.

For example, the laws of libel would allow Winston Churchill to sue anyone who claimed that he was racist during his lifetime, but they could not be used to stop historians making such claims after his death.

Put simply, the laws of libel are intended to protect only the living against unjustified attacks on their reputation. "Of their dead relative, there are no circumstances under which a family could sue for libel," says Mr Lamont.

'Saving' prostitutes

There are some routes of action which aggrieved families can sometimes take, though.

One example is when the family of the former prime minister William Gladstone took exception to claims that he liked to cavort with prostitutes.

Gladstone
Gladstone: Gossip target
"One version was that he would sleep with them, another is that he would try to save them," says Mr Lamont.

Despite gossip about his unusual habits before his death in 1898, it was not until they were published in 1927 that action was taken. The family called author Peter Wright a liar, which caused him to sue them. Unable to prove the allegations, the writer lost the case - showing that even if you can't libel the dead you can still be provoked into a foolhardy defence of your own reputation.

False claims

The living can also take action when the claims against the deceased have knock-on effects against them. For example, if a newspaper were to claim the deceased committed crimes with members of their family, the family could sue.

Action could also be taken on the grounds of malicious falsehood - where a claim survives for the benefit of the estate. For example, should an article falsely claim that the death of a person meant their business had closed, the estate could sue if the piece was intended to damage the firm and it did so.

Lord Lucan

For those writers who manage to steer away from any tales which libel or otherwise harm the living, one area of danger remains - the undead.

It is not as unusual as some might think for reports of a death to be a little premature.

Earlier this year a man feared to have been killed by the Asian tsunami after telling friends and family he was taking a three month holiday in Thailand turned up safe and well in a British prison.

Should the likes of the much-maligned Lord Lucan turn up alive it could mean many a difficult day in court for the UK's newspaper editors.


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