Of the dead, say nothing but good

R.J.F. Wigman

Writers and filmmakers regularly come into conflict with people who consider that their honour and reputation have been damaged by a publication. The case law is abundant. But what about the honour and reputation of the dead? This article examines whether different rules may apply where the reputation of a deceased person is damaged. The recent sorrow and anger of the De Kom children about the way their father Anton de Kom is portrayed in the novel De man van veel, and Peter Koelewijn’s proceedings against the writer A.F.Th. van der Heijden about his alleged damage to the reputation of Koelewijn’s mother in the novel De Helleveeg, show that the reputation of a deceased person is a sensitive matter.

Introduction

Zwolle, 1859. Having lost her husband less than a year after the birth of their daughter, the young widow Pruijmers is consoled by the local minister Van Rijn, ten years her senior. In 1863 there is talk of “forbidden association” between the widow and the minister. In that same year an application is lodged with the court to remove the widow from guardianship, and an objection is made to the church council about the minister’s way of life. On 9 October 1863 the widow is removed from the guardianship of her daughter.

What had happened? In November 1862 Mrs Pruijmers had left for Cette in France, where she gave birth to a son in December. The Reverend Van Rijn also arrived in Cette in December 1862 and entrusted the child to a wet nurse (for payment of 5,500 francs).

In the preceding years the married Reverend Van Rijn had constantly been seen in the widow’s company; even when the widow was staying in Zandvoort, the minister was there too. Van Rijn’s house was searched, and the letters found there showed that the relationship between Van Rijn and the widow Pruijmers was “far from spiritual”.

This history is well documented: proceedings were brought about the guardianship, and Van Rijn’s removal from office was litigated before the general synod of the Dutch Reformed Church. The story ends with the widow losing the guardianship of her daughter (and having her daughter abducted to Switzerland, in vain) and leaving for England, where she would die in 1911. Van Rijn is removed from office, spends a short time in prison and follows the widow to England.

In 1951 the writer Henri A. Ett published the book Holland in rep en roer. In 1953 Willem Karel baron van Dedem, a deputy public prosecutor, brought interim injunction proceedings against the writer and the publisher, seeking an injunction restraining distribution. Van Dedem considered that the book defamed the Van Dedem family and did so in the knowledge that the allegations were untrue. The book described “the case of the widow Pruimers”, and the widow Pruimers was Johanna Theodora baroness van Dedem (1835 to 1911), a great-aunt of the prosecutor.

In 1963 that same public prosecutor issued fines of 150 guilders to Alard van Lenthe and Relus ter Beek because they had placed a board at the statue of Governor-General Van Heutsz in Coevorden bearing the text: “Fallen asleep under the swastika, killed in the massacre of the 39th Acehnese village; in the rape of the 79th Acehnese woman; in order to re-establish the shaken confidence of the Netherlands Indies administration.” Van Heutsz’s daughter had then lodged a complaint of insult.

In 2006 the Washington Post published an article under the title Give the dead their due, in which the writer took issue with the “character assassination” of the first officer of the Titanic, who in the film Titanic is depicted, contrary to the truth, “as a nut who shoots a passenger and then himself”, whereas in reality nobody on the Titanic was shot and this man is known to have given his life jacket to a fellow passenger and to have drowned.

Writers and makers of films and documentaries regularly want to tell stories about deceased persons and events in the past. That is rarely a problem where people and matters are presented in a positive light, but where questions are raised about the character or the integrity of a deceased person, or about their conduct in the past, what may you say and what can you not say? To what extent do surviving relatives have a say over the honour and reputation of the deceased?

Alongside, and separately from, the questions set out above, one may ask whether a deceased person also has a right to privacy: should the dead be left in peace? Here too the surviving relatives make themselves heard, as one would expect. This article, however, is not about the right to privacy of the dead.

Surviving relatives often do not want their partner, father or mother, or their child, to be written about or portrayed in a film. Take the family of Daphne, who fell from a cliff and died during a holiday with a friend (also called Daphne). The surviving Daphne wrote a book about it, to the great sorrow and anger of the family of the Daphne who died. Surviving relatives certainly do not want their deceased loved one written about in a less than positive way. Relatives of Dutch soldiers who had fought on the Grebbeberg in May 1940 tried to prevent an unaltered reprint of a book asserting that Dutch soldiers had committed violations of the law of war during that fighting. Where permission is given, for a biography for instance, restrictive conditions are often attached to it. Nop Maas, the biographer of Gerard Reve, was not permitted by Joop Schafthuizen to write about private finances.

The question of the (un)lawfulness of an intended publication arises regularly. A recent example concerning a deceased person is the case of the children of Queen Juliana’s former chamberlain against Professor C. Fasseur, but it was also a point of attention in the making of the films about the lives of Klaas Bruinsma and Herman Brood. The immediate occasion for this article is Peter Koelewijn’s interim injunction proceedings against A.F.Th. van der Heijden about the damage to the reputation of Koelewijn’s mother, who in the book De Helleveeg is said to be depicted as an “abortionist” in the 1960s.

This article aims to sketch the Dutch legal framework that plays a part in (unlawful) publications about deceased persons.

The very fact that the Netherlands has a legal framework for this is not self-evident. Abroad the view is sometimes different. You can’t libel the dead, as the English saying goes. The rationale for that is twofold. On the one hand the idea behind protecting honour and reputation is that a person must be able to provide for their livelihood and enjoy the benefits of a good reputation within the community, and the dead no longer have need of a livelihood. On the other hand, unbridled protection of the reputation of the deceased would stand in the way of historical research. England accordingly does not recognise the notion that a deceased person can be damaged in their honour and reputation. The United States too generally does not recognise this doctrine.

Legal framework

The legal framework for damage to the honour and reputation of a deceased person has both a criminal and a civil side in the Netherlands. In both, the starting point is the freedom of expression guaranteed by article 10 of the European Convention on Human Rights (“ECHR”).

Criminal law

I touch on the criminal side only briefly.

Article 270 of the Dutch Criminal Code provides that a person “who in respect of a deceased person commits an act which, had that person still been alive, would have been characterised as defamation in writing or defamation, shall be punished with a term of imprisonment of no more than three months or a fine of the second category”. Insulting a deceased person is regarded as a criminal offence and is what is known as a complaint offence: prosecution takes place only after a complaint. Paragraph 2 of article 270 limits the circle of those who may lodge a complaint to blood relatives or relatives by marriage of the deceased in the direct line or the collateral line up to the second degree, and to the spouse. Incidentally, insulting a deceased person carries a lower penalty than insulting a living person: three months as against six (defamation) and twelve months (defamation in writing).

Civil law

Until the new Civil Code came into force in 1992, the Netherlands had a separate provision within the rules on unlawful act devoted to the insult of a deceased person (article 1411 of the old Civil Code). That article provided that “the actions referred to in the three preceding articles are also available to spouses, parents, grandparents, children and grandchildren, in respect of insults inflicted on their spouses, children, grandchildren, parents and grandparents after their decease”.

Where there was insult, the person concerned had no claim under article 1401 of the old Civil Code (unlawful act), but only a claim under article 1411. Where, however, there was no insult within the meaning of the statute, for instance because a necessary element was missing (such as the required intention to insult), a claim could certainly be brought under the general unlawful act provision.

The original Dutch provisions did not, incidentally, come from Napoleon’s Code Civil, but were a Dutch addition of 1833.

Because it was felt from the very beginning, and generally accepted, that the provisions on insult in the Civil Code were superfluous and indeed harmful, no separate arrangement for insult or criminal defamation was included in the new Civil Code. Since the new Civil Code came into force, insult in civil law is, where all the requirements are met, an unlawful act falling under article 6:162.

The memory of a deceased person is still mentioned in Book 6, in article 6:106(1)(c). That article provides that the court can award compensation assessed on an equitable basis where the loss consists in damage to the memory of a deceased person and has been inflicted on a spouse or a blood relative up to the second degree.

The assessment framework

Any unlawfulness of a publication has to be assessed by weighing the fundamental rights of freedom of expression on the one hand against the protection of and respect for private life on the other. The Dutch Supreme Court has formulated a number of criteria for assessing which interest must carry more weight in the given circumstances. They are (i) the content of the facts or suspicions published, (ii) the seriousness of the wrong the publication seeks to expose, (iii) the extent to which the publication is supported by the available factual material, (iv) the expected consequences of the publication, (v) the tone of the publication and (vi) any possibility of achieving the aim by another route less harmful to the injured party. These criteria, which are certainly not exhaustive, apply equally to a publication about a deceased person.

Does it matter for the assessment of (un)lawfulness whether fiction or non-fiction is involved? Yes, almost self-evidently so, I would say. Non-fiction purports to give a truthful picture, whereas with fiction, certainly in relation to the dead and to historical figures, a reality of its own may be created.

On the basis of the case law I arrive at the following circumstances that are also relevant to assessing damage to the honour and reputation of a deceased person.

fiction: no intention to create an accurate picture and no expectations on the part of the public

Margaretha Geertruida Zelle is better known as Mata Hari, exotic dancer, sentenced to death in France in 1917 for spying for Germany. In 1932 Mata Hari’s surviving relatives brought proceedings to prohibit a film about her. It was argued that the film insulted the memory of Margaretha Zelle, which was unlawful towards the relatives. They objected in particular to a scene in the film in which Mata Hari takes the life of General Shubin. According to the court, however, the film, despite being announced as “Mata Hari’s life story”, did not give a historically accurate picture of that life story and did not seek to do so. Nor was it understood as such by the public. The film could only be seen as a plot resting on pure fantasy. For that reason the film did not have a defamatory meaning for her memory.

In passing, the court also gives its view on how the public would look at the film: “that, even though Mata Hari never shot anyone at all, her memory can hardly have suffered with the public through this film, a public which spontaneously and often unreasoningly tends to take the side of acts inspired by love and directed at saving the beloved”.

Whether a court today would reach the same conclusion on that ground is open to question. What is certain is that the perception of the public also weighed in the dismissal of the claims of the (still very much alive) kidnappers of Freddy Heineken to prohibit the film about them, or to have it amended.

In the case Holleeder brought against the producer, the judge hearing the application held (paragraph 4.16): “As the disclaimer referred to under 2.2 shows, IDTV in fact alerts the public to the fact that fact and fiction are mixed in the film. That part of the public nonetheless attributes the conduct of ‘Rem’ to [the claimant] is not implausible, but it does not make IDTV’s conduct unlawful. As long as IDTV makes sufficiently clear in its statements that the film is not intended to be a factual representation of reality, as it has done so far, it cannot be held responsible for third parties reaching different conclusions.” And in the judgment in the case of the two fellow kidnappers against the producer, the judge held (paragraph 4.6): “In reaching this conclusion it is important that a feature film based on a historical event never rests entirely on reality; a feature film is, after all, not a documentary, and the public will understand it as such.”

In the case of Peter Koelewijn against Van der Heijden the court also relies on this ground: “It is characteristic of a novel that it is not a faithful description of reality”, and “The public will attach a different weight to statements (by characters) in a novel than to statements by, for instance, a journalist or an academic.”

fiction: context

In 1990 the administrators of the estate of the Romanian artist Arnold Daghani brought proceedings against the writer Chris van der Heijden. In 1989 Van der Heijden had published a pseudo-biography of this artist, who died in 1985, under the title Daghani, Daghani. The relatives considered that Daghani was depicted as a “filthy idiot” and as a man who had received preferential treatment in the German concentration camp, who had only been happy in the camp and had only received recognition as an artist there. The President of the Amsterdam District Court held that the contested passages had to be assessed in their context as part of the story as a whole, and considered that Daghani came across, “from the undercurrent of the story as a whole”, as a particularly gentle man. From that alone it followed that the story did not damage Daghani’s memory.

More than one academic writer has wondered what the court would have held had it considered that Daghani did not come across as a gentle man.

Context, as assessed in that case, can be brought under the familiar criterion of “tone”. This circumstance again plays a part in Koelewijn v Van der Heijden. Koelewijn argues that the context in which his family is depicted is unlawful, and the court holds that where true facts are used in fiction, the context matters. In this case the court finds no offensive connotation and holds that the family is not depicted in the novel in a defamatory manner.

fiction: only a few corresponding facts

The son of the prostitute “Blonde Marietje”, killed by strangulation in 1958 at the age of 47, objected to the film Blonde Dolly, released in 1987. In the film Blonde Dolly’s neighbour, a prostitute called Marietje, is killed with knife wounds. The son objected to the film, arguing that Marietje was meant to be his mother and that old wounds had been reopened. He asserted a legitimate interest as a surviving relative opposing the showing of the film, and careless conduct on the part of the filmmakers.

For carelessness it is necessary, according to the court, that Riverside Pictures intended the film character Marietje to depict Blonde Marietje as well. The resemblance, however, goes no further than the name, the profession practised at the Nieuwe Haven in The Hague, a violent death and a child. That did not, in the court’s view, make it plausible that the film producer had intended to depict Blonde Marietje in the film character Marietje.

non-fiction: insufficient research

In a report by Netwerk about an air accident involving the KLM aircraft Neutron off the coast of Biak in 1957, the broadcaster KRO suggested that drinking and stunt behaviour by the captain, De Roos, might have been the cause of the disaster in which 58 people died. De Roos’s surviving relatives considered his memory damaged and brought proceedings against KRO. According to the court, KRO had insufficiently investigated whether its sources’ accusations were supported by the facts. The fact that KRO had carried out no further journalistic research was not justified by the topicality of the matter. A rectification followed.

KRO does not dispute that, as the relatives assert, the broadcast report makes accusations against captain Rob de Roos concerning possible drinking in the hours before the aircraft’s departure and boasting about stunts. Those accusations are serious in nature and damage the honour and reputation of captain Rob de Roos, the memory of him and the private life of his surviving relatives.

Had KRO investigated the accuracy of the statement of [witness 2], it could have established that question marks had to be placed against that statement and that it required qualification, because, as has become clear, [witness 2] was not working as a barman in the bar in question on the evening concerned, was never inside it, and did not himself hear captain Rob de Roos speak or see him drink.

The accusation of boasting about stunt behaviour against captain Rob de Roos is therefore based solely on the statement of [witness 2], a statement KRO wrongly failed to verify, and the accusation of possible drinking in the hours before the aircraft’s departure rests not on facts but on rumours of the time, and is suggested rather than stated.

That KRO carried out no further journalistic research before the broadcast is not justified by the topicality, at that moment, arising from the parliamentary inquiry into the Bijlmer disaster with which the report was, according to KRO, connected.

In the light of this, and of what has been considered above concerning, in short, the nature of the accusation made by KRO against captain Rob de Roos in the broadcast, its expected consequences for his memory, the fact that his surviving relatives had objected to the intended broadcast before it went out, the fact that the air disaster took place more than 40 years ago, the wrong KRO sought to expose and the extent to which the accusations were supported by the factual material available at the time of the broadcast, the court holds that the broadcast is unlawful towards the surviving relatives.

This assessment too seems to me to be in line with a criterion already formulated by the Supreme Court: there is no support in the available factual material for the accusations made.

non-fiction: sufficient source material

In 2008 the historian Cees Fasseur published Juliana en Bernhard. Het verhaal van een huwelijk, covering the years 1936 to 1956. Fasseur carried out extensive research, including exclusive access to the Royal House Archives. Among other things he was able to do research in the archive of I.G. van Maasdijk, who served at court in various capacities from 1948 to 1956, and from 1950 to 1956 as chamberlain in extraordinary service to Queen Juliana. In the book this Van Maasdijk is depicted as a troublemaker, an intriguer and a firebrand at court, and a man with a “character problem”: vain, touchy, in constant inner conflict and lacking self-control. It is the children of this Van Maasdijk who brought proceedings against the author and the publisher. They considered the characterisations of their father unlawful and demanded an insert slip with a text to be specified by them, or the removal of the passages concerned. Fasseur, however, was able to point to numerous sources for his characterisations. Those sources meant that his unflattering characterisations found sufficient support in the facts.

Once again a decision in line with the Supreme Court’s starting points: the available factual material offers sufficient support for the accusation.

fiction and non-fiction: the passage of time

Nobody would suggest that the surviving relatives of Napoleon Bonaparte are insulted if a historian writes a work about Bonaparte in which it is posited that Napoleon may after all have suffered from a mental illness. Many a reader may have raised an eyebrow at Baron van Dedem’s claim in the introduction to this article. Intuitively, then, it certainly holds that the longer ago it was, the less insulting it is. And the courts too take the passage of time into account.

In the case of the Anne Frank Fonds against Het Parool, in which the Anne Frank Fonds opposed the publication of previously unpublished diary fragments by Anne Frank, the court at first instance held in as many words that all those involved had since died, so that the element of protection of reputation, and of privacy generally, weighed less heavily.

Even where those involved are still alive, the courts take into account the time that has passed since the events. In the case of two of the Heineken kidnappers against the producer IDTV Film about the depiction of the events in the film, the judge held (paragraph 4.3): “The film is about an event of almost 30 years ago (…)”, and drew from that the conclusion that there will not be a single truth: with the passage of time, fact and fiction already run into one another.

If the passage of time is already relevant to assessing the (un)lawfulness of a publication about a living person, it certainly plays a part in assessing the (un)lawfulness of a publication about a deceased person.

Conclusion

On the basis of the case law cited in this article I conclude that, for the question whether a publication about a deceased person is unlawful, at least the following considerations play an (additional) part.

The passage of time: the longer ago the deceased lived and the events described took place, the less readily any errors in the account will render the publication unlawful.

Intention: where the writer had no intention of sketching a (historically) accurate picture of the events, an unlawful publication will also be less readily found.

Expectations: where no expectations are raised in the public, for instance as to the accuracy of the events depicted (and that is apparently by definition the case with fiction), unlawfulness will likewise be less readily found.

Corresponding facts: the fewer facts from reality correspond with the events or persons described, the less readily unlawfulness will be found.

Finally

Not every aspect of publications about the dead has been covered above. There can also be image rights (or rather a right of the surviving relatives in the portrait of the deceased). The legitimate interest required to prevent publication of the portrait will usually lie in protecting the privacy of the deceased, or in a commercial interest of the relatives.

For the claims available to surviving relatives (an injunction restraining further publication, recall, rectification and damages), reference is made to the relevant literature. For those interested in the rights of the dead, I would also warmly recommend the fine article Rights of the Dead by Kirsten Rabe Smolensky in the Hofstra Law Review.