'Can Defamation Against the Deceased be Established?'

When an article defaming one’s honor is published, or when one’s social reputation is damaged due to slander, a person can claim damages. But what happens in the case of a deceased person? Can defamation against the deceased be established? The issue is whether the bereaved family can exercise the right to claim damages based on defamation, as it is based on the personal rights inherent to the victim.

“A person who defames the honor of the deceased shall not be punished unless it is done by indicating false facts.”

Article 230, Paragraph 2 of the Japanese Penal Code

In other words, a person who defames the honor of the deceased by indicating false facts will be punished.

Defamation of the Deceased under the Japanese Civil Code

On the other hand, the situation is slightly different under the Japanese Civil Code.

Under the Japanese Civil Code, an act of tort is established when one’s body, freedom, or honor is violated, and compensation for damages is possible. However, in the case of compensation for damages due to defamation, the basis is the personality rights, which aim to protect the personal interests that a person has in social life. Generally, these personality rights are exclusive rights, meaning they belong to a specific individual and cannot be acquired or exercised by others. It is believed that these rights cease to exist upon the death of the rights holder.

To summarize the perspective on defamation of the deceased under the Japanese Civil Code, it can be organized as follows:

1. While there are opinions that recognize the honor of the deceased, there are doubts about the theoretical basis, and there is no practical benefit in recognizing the honor of the deceased.
2. Even if a fact that lowers the social evaluation of the deceased is presented, if it can be interpreted as something that lowers the social evaluation of the bereaved family, it can be considered that the honor of the bereaved family has been defamed.
3. In cases where an article defaming the honor of the deceased cannot be interpreted as defaming the honor of the bereaved family, there are cases where the “personal feelings of respect and admiration” are recognized as infringed interests.

Therefore, many court precedents are based on the infringement of the inheritable rights of the bereaved family as in 2, or the infringement of devout feelings as in 3.

The First Case Where the Affection and Respect of the Bereaved Family for the Deceased Was an Issue

The first case where defamation of the deceased became an issue was a lawsuit surrounding the novel “The Setting Sun Burns” by author Shiro Shimayama.

“The Setting Sun Burns” is a novel that depicts the life of Hiroki Kōki, the only civilian among the seven Class A war criminals sentenced to hanging at the Tokyo Trials. In this novel, there was a description of the private affairs of Diplomat A (deceased), who was considered a rival of Hiroki. The problematic part was a passage that stated, “His lovers were not only women from the pleasure quarters. There were also rumors about his relationship with a subordinate’s wife. (Hiroki, who was fastidious, frowned upon such private conduct of A, saying it was ‘unacceptable even to the wind.’)

A had no children, but X (plaintiff/appellant), who was A’s nephew and was loved like a real son, claimed that this passage was baseless and depicted A as a disgraceful man who had an affair with the wife of a subordinate at the Ministry of Foreign Affairs. X, who revered A like a real father, claimed that A’s honor was damaged and that he suffered great mental anguish as a result. He filed a lawsuit against Shimayama and the publisher, demanding an apology advertisement and payment of 1 million yen in compensation.

The Tokyo District Court distinguished between:

1. Cases where the honor of the survivors themselves is damaged by acts that defame the honor of the deceased
2. Cases where only the honor of the deceased is defamed

and proposed a framework for judgment that,

“In case 1, defamation against the bereaved family is established, but in case 2, it should be considered an illegal act only when defamation is made with falsehood and delusion,” and concluded that this case falls under case 2, and there is no evidence sufficient to determine that it is false and delusional.

July 19, 1977 Judgment

and dismissed the claim.

X appealed this judgment, and the Tokyo High Court, which is the appellate court, stated,

This lawsuit is understood to claim an illegal act against the appellant on the grounds that the appellant suffered significant mental anguish due to the act of defaming the deceased. Therefore, there is no problem with the claimant as mentioned above. And the affection and respect of the bereaved family for the deceased should also be protected as a kind of personal right, so it can be said that an act that illegally infringes on this constitutes an illegal act. However, the affection and respect of the bereaved family for the deceased is strongest immediately after death and generally diminishes over time. On the other hand, facts about the deceased can be said to transition into historical facts over time. Therefore, as time passes, consideration for the freedom to seek historical facts or the freedom of expression should take precedence. In cases like this one, the factors to be considered in determining the illegality of the act are not necessarily simple, and it is necessary to weigh the manner of both the infringed right and the infringing act and decide accordingly. In making that judgment, it is naturally necessary to take into account the circumstances of the previous judgment that accompany the passage of time.

while stating,

A died on November 29, 1929, and the passage in question was published in January 1974, more than 44 years after his death. In such a case where a considerable amount of time has passed, in order to affirm the illegality of the right act, at least in light of the above demonstration, it should be required that the facts pointed out are false, and that the facts are significant and, regardless of the passage of time, have harmed the appellant’s affection and respect for the deceased to an extent that is difficult to accept. Therefore, it is appropriate to affirm the establishment of an illegal act only in such cases. However, according to the previous findings, it cannot be recognized that the part of the passage in question is a false fact, so there is no illegality in the act of the defendant, and it is not possible to recognize the establishment of an illegal act claimed by the appellant.

Tokyo High Court Judgment, March 14, 1979

and dismissed the appeal. Although it was not accepted because it was a case that had passed more than 44 years, it is the first judicial precedent that recognized that “the affection and respect of the bereaved family for the deceased should also be protected as a form of personal legal interest”.

Cases of Defamation of a Deceased’s Family’s Honor

On the other hand, there is a case where a claim for damages was recognized because the incorrect reporting of a murder case in a newspaper not only defamed the victim but also the honor of the victim’s family (mother).

The victim got married in 1972, moved into an apartment where the crime took place with her husband, worked part-time at a supermarket, and lived a quiet and honest life without any particular rumors about her relationships. The perpetrator, a man who had been hospitalized in a mental hospital, was discharged in 1976 and moved into the same apartment, where they became acquainted. However, they only exchanged greetings as neighbors and had no particular contact. However, the perpetrator developed delusions, believing that he had a romantic and physical relationship with the victim, that the victim was troubled by a love triangle, and that she would not accept his marriage proposal, leading him to stab the victim to death and seriously injure her husband.

The Shizuoka District Court found that the Shizuoka Newspaper reported this incident under the headline “Tangled Love Triangle” and described in the body of the article that the “common-law wife” and “the perpetrator had recently become close to the victim who worked at the supermarket,” giving the general reader the impression that the victim not only had a complicated romantic relationship with the perpetrator but also had a physical relationship. The court recognized that these were all false and defamed the victim’s honor by lowering her social evaluation.

Furthermore, the court judged whether the honor of the plaintiff, the victim’s mother, was also defamed. After the publication of this article, in the local community where many general readers of the defendant newspaper who took the article as true reside, and where the plaintiff also resides, it was recognized that the victim’s mother, as the mother of the victim, became the target of secular interest and was living a life of embarrassment and restraint.

Considering the actual situation where the decline in a person’s honor in social life can affect the honor of certain close relatives, it must be said that generally, when a newspaper article defames the honor of the deceased, the decline in social evaluation does not only affect the deceased, but can also affect those who have a close kinship relationship with the deceased, such as spouses and parents and children.

Shizuoka District Court, July 17, 1981 Judgment

The court stated, “In cases where the publication of a newspaper article defames the honor of the deceased with false facts, and this leads to the defamation of the honor of close relatives, the publication of the article should be considered as constituting a tort against the close relatives.” Therefore, the victim’s mother, unable to restore the victim’s honor, was able to claim tort liability for defamation against the defendant, and the court ordered the newspaper company to pay 300,000 yen in compensation for emotional distress.

Case of Infringement on the Affection and Reverence of the Bereaved Family for the Deceased

Defamation of the deceased does not constitute a tort against the deceased themselves, but there have been cases where it has been established as a tort for infringing on the affection and reverence of the bereaved family for the deceased (infringement of the bereaved family’s personal rights). In January 1987, the magazine “Focus” published an article titled “The Footsteps of the AIDS Death ‘Woman of Kobe'”, which introduced a deceased woman (Ms. XX) as the first female AIDS patient in Japan, along with a stolen photo of her funeral, without permission. The article reported that the woman worked at a bar that primarily served foreign sailors, where she would take one or two customers a week, and sometimes shared regular customers with other hostesses.

In response to this, the parents of the deceased woman filed a lawsuit, claiming that their and Ms. XX’s rights or legal interests had been violated. The Osaka District Court stated, “The plaintiffs argue that in this case, the defendants’ actions violated the deceased Ms. XX’s rights of honor, privacy, and portrait rights. However, such personal rights should be understood as exclusive rights due to their nature, and when a person dies, they lose their capacity (right to capacity) to be the subject of rights and obligations under private law, so these personal rights also disappear with the death of the person. There is no general provision in positive law that recognizes the creation of rights with the same content as the personal rights that the deceased enjoyed during their lifetime for the bereaved family or heirs, nor is there any provision that recognizes the enjoyment and exercise of personal rights for the deceased.” Therefore, it was stated that “We cannot recognize the personal rights of the deceased, so we cannot adopt the plaintiffs’ argument that Ms. XX’s personal rights were violated.” It is also noteworthy that the portrait rights of the deceased were not recognized.

Next, the court judged whether the plaintiffs’ personal rights and their affection and reverence for Ms. XX were violated. It was found that most of the content of the article could not be recognized as fact, and that the content of the article significantly lowered social evaluation, and that Ms. XX’s honor was significantly defamed by the report.

The report in question significantly defamed Ms. XX’s honor and exposed extremely serious facts about Ms. XX’s private life that she would not want others to know, or things that would be perceived as such, which would infringe on her right to privacy if she were alive. As a result of such reporting, the plaintiffs, who are the parents of Ms. XX, are recognized as having their affection and reverence for Ms. XX significantly violated. Therefore, the report in question infringes on the plaintiffs’ personal rights.

Osaka District Court, December 27, 1989 Judgment

With this judgment, the Osaka District Court ordered the magazine “Focus” to pay 1 million yen in compensation for emotional distress, 100,000 yen in attorney’s fees, for a total of 1.1 million yen.

Can the Right to Claim Damages be Inherited?

Although the order may be reversed, there is a case where A made defamatory remarks against B, and then B died. Regarding the question of whether this right to claim damages can be inherited, there is a precedent from the Supreme Court of Japan. The original judgment stated that the right to claim damages is an exclusive right of the individual, and it only becomes subject to inheritance when the victim expresses their intention to claim. However, the Supreme Court ruled that this contradicts the concept of fairness and the principles of law, and that it misinterprets the legal theory regarding the inheritance of the right to claim damages.

The Supreme Court stated,

“When a person suffers non-financial damage due to the intentional negligence of another, that person acquires the right to claim compensation, i.e., the right to claim damages, at the same time as the damage occurs, just as in the case of financial damage. Unless there are special circumstances that can be interpreted as a waiver of this right, it can be exercised without the need for any special action such as expressing the intention to claim compensation for the damage. And when the victim dies, it is reasonable to interpret that the heir naturally inherits the right to claim damages.”

Supreme Court Judgment, November 1, 1967

It stated, “Although the legal interest of the victim in the case where the right to claim damages arises is exclusive to the victim, the right to claim damages itself, which arises from the violation of this, is a simple monetary claim, just like the right to claim compensation for financial damage, and there is no legal basis to interpret that it cannot be inherited.” The Supreme Court overturned the original judgment that did not recognize the inheritance of the right to claim damages, and remanded the case to the lower court.

Summary

If your honor has been tarnished or your privacy has been violated, it does not mean that the bereaved family must endure these injustices simply because it concerns the honor of the deceased. While the deceased cannot initiate a lawsuit, if you are a family member or someone who can be regarded as such, it is possible to claim that your honor has been tarnished or your feelings of respect and admiration have been violated.

However, most claims for damages in such cases are made through court proceedings. Legal procedures are complex and require specialized knowledge. If you are considering a claim for damages due to defamation of a deceased person, it is recommended to consult with a legal expert, such as a lawyer.