A Defence of the Bar Against Posthumous Defamation Claims in New Zealand: Protecting the Pursuit of Historical Truth

Abstract

This paper mounts a defence of the current bar against posthumous defamation claims in New Zealand on the ground that this position best protects the work of historians. Cases and legislation in Europe and elsewhere have recognised the harm that defaming a deceased person can have on their living family members or have explicitly allowed posthumous defamation claims. New Zealand law currently bars the continuation or commencement of defamation proceedings after the death of a party. A cause of action in defamation dies unless judgment or verdict has been entered. Although the origins of the common law rule that a personal right of action dies with the person may be doubted, the rule serves unique purposes in the context of defamation, its significance for historians being the focus of this paper. This paper responds to criticisms of the current bar against posthumous defamation claims. It then provides an overview of various developments in defamation and privacy law affecting historians and argues that these indicate that defamation claims surviving death would impede the creation of historical works. Finally, the paper predicts the likely consequences for historians of permitting claims to be continued or commenced. Allowing the commencement of defamation claims would seriously hinder the work of historians, namely the finding of historical truth, particularly in the absense of a historians’ defence. Overall, maintaining the current common law position would best protect historical works.