Yes, you can speak ill of the dead
For thousands of years we have been told not to speak “evil” of the dead. Some say it dates back to the 6th century BC philosopher Chilon of Sparta, who warned it would harm the deceased’s enjoyment of the afterlife. Mind you, Chilon also said “obey the law”, and Australian law says you certainly can speak ill of the dead.
Legally permissible to speak ill of the dead
Under Australian law, defamation does not apply to deceased persons.
Common law states the dead have no rights and a person’s reputation cannot be violated if they are no longer alive. Only a living person can bring a legal action for defamation.
Even if a living person brings a legal action for defamation, that action ends when they die. Relatives cannot continue the legal action.
However, this is not the case in Germany, where “disparaging the memory of a deceased person” can lead to lawsuits, fines and up to two years in jail. (Please see Protection of the Honour of Deceased Persons – a Comparison Between the German and the Australian Legal Situations, Bond Law Review, 2001.)
In the US state of Rhode Island it is unlawful to defame a dead person within the first three months of their death.
This might protect the dead from unflattering obituaries, or from having nasty words spoken at their funeral.
However, if protection of the reputation of the dead continued for years, it could prevent history books being written and revealing unpleasant facts about the deceased person.
Australian Law Reform Commission proposal to amend defamation laws
In 1970s the Australian Law Reform Commission suggested amendments to defamation laws, to make it illegal to speak ill of the dead for a time.
The commission proposed allowing a defamation action to be taken by a representative of the deceased if the publication is made within three years of the person’s death. The action could obtain an injunction, a declaratory order or a correction.
The government rejected the commission’s proposal. This is just as well, because defamation cases involving the living have soared in NSW since the advent of the internet and social media. (Please see Social media defamation: be cautious when posting or re-posting online comments, reviews and links.)
What is defamation?
The NSW Defamation Act 2005 and the NSW Defamation Amendment Act 2020 state that for a defamation claim to be successful, it must be established that the publication of the defamatory material caused serious harm to the person’s reputation.
The person claiming defamation must be identified or identifiable in the material, and there is no legal excuse for publication of the defamatory material.
Defences can include truth, no harm caused and honest opinion about a matter of public interest. The claim must be made within one year of publication. (For more information please see Defamation of character.)
Defamation payouts and internet commentary
Defamation payouts have also soared as the internet has led to comments spreading through the community.
In 2022 former NSW deputy premier John Barilaro received a $715,000 payout from Google after it was found to have hosted defamatory comments on a YouTube account.
The person who posted the comments earlier paid Mr Barilaro $100,000 and made an apology. (Please see Barilaro v Google LLC  FCA 650.)
If anybody feels they have been defamed, it was worth getting advice from a lawyer specialising in defamation cases. Similarly, if someone has been accused of making defamatory comments, it is essential they seek legal advice on how to defend themselves.