It is a well-established doctrine in common law countries that law does not protect the reputation and privacy of the deceased. However, many countries, including Westem European democracies, protect them to various extents by confining free expression and exchange of information and ideas regarding the dead and the past. Such an instrumental use of defamation law and privacy law can provide censorship of history with justifiable legal grounds. Based on an analysis of representative legal cases on posthumous reputation and posthumous privacy collected across the world, this article tries to offer a thorough analysis of the phenomenon of how legal protection of posthumous reputation and privacy can be used to carry out censorship of history.
After a brief introduction, Section II will explain the concepts of posthumous reputation and posthumous privacy and their relationship with history censorship in theory, so that it is clear why history censorship can be achieved via protection of the two posthumous interests. Section III will briefly discuss the related legal apparatuses that can be used to protect the deceased's reputation and privacy in different jurisdictions, whose abuse or misuse may lead to history censorship. Section IV will classify the collected legal cases on posthumous reputation and privacy into eight categories and discuss the circumstances of history censorship in each category. Section V will deepen the case analysis by illustrating the international criteria of free speech right protection, defining the icons of history censorship, explaining the dilemma between historical truth and judicial truth confronted by judges, and clarifying the negative impacts on law itself. Section VI will further explore the interactions among law, politics and culture, which may account for the differentiated legal treatments of the two posthumous interests in different jurisdictions. The article concludes with an invitation to re-consider the law's role in resolving posthumous defamation and privacy controversies when historical narratives are involved, and proposes how to achieve better decisions in future cases.
"Legal Cases on Posthumous Reputation and Posthumous Privacy: History Censorship, Law, Politics and Culture,"
Syracuse Journal of International Law and Commerce: Vol. 42
, Article 4.
Available at: https://surface.syr.edu/jilc/vol42/iss1/4