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9 min readPrivacy law and death: the basic position
In English law, privacy rights under the Human Rights Act 1998 and the tort of misuse of private information are personal rights. They cannot generally be asserted by or on behalf of a deceased person. The general position is that privacy rights die with the individual: a deceased person's estate cannot bring a misuse of private information claim in respect of that person's private information.
This does not mean that publication of information about a deceased person is legally unconstrained. Three categories of legal risk survive the subject's death:
- Living family members and associates retain their own Article 8 ECHR rights, which can be engaged by the disclosure of private information about the deceased — particularly medical information, details of intimate relationships, or information about circumstances of death.
- Living individuals named in connection with the deceased — accused persons, named associates, organisations — retain full defamation and privacy rights.
- Court orders made during the deceased’s lifetime (such as anonymity orders or injunctions) may survive death unless specifically discharged. These bind the journalist even after the subject has died.
Defamation and the deceased: no claim, but living parties can still sue
The Defamation Act 2013 does not provide for defamation claims by or on behalf of deceased persons, and this was the position under the common law before the 2013 Act. A story that makes false and damaging allegations about a deceased individual cannot be the subject of a defamation action brought on their behalf or by their estate.
The critical qualification is that stories about deceased individuals rarely involve the deceased alone. A story about a cover-up of wrongdoing involving a deceased person will typically name living co-conspirators, family members, employers, or institutions. Each of those living parties retains their full defamation rights. The fact that the primary subject of the story is dead does not reduce the liability exposure in respect of living named parties.
Under the Defamation Act 2013 s.1, a defamation claim by a living claimant requires proof of serious harm. A business claimant must show serious financial loss. The serious harm threshold applies regardless of whether the primary subject of the story is alive or deceased. See the full guide to Defamation Act 2013 s.4 and the public-interest defence.
IPSO Clause 4: intrusion into grief or shock
Clause 4 of the IPSO Editors' Code of Practice states: “In cases involving personal grief or shock, enquiries and approaches must be made with sympathy and discretion and publication must be handled sensitively. These provisions, however, do not restrict the right to report legal proceedings.”
The clause does not prohibit reporting on death or bereavement. It requires the manner of approach and the handling of the resulting material to be appropriate to the circumstances. In practice, Clause 4 is most frequently engaged when:
- Journalists approach bereaved relatives at or shortly after the scene of a death, or at the funeral.
- Journalists persist in seeking comment after a family has made clear they do not wish to speak.
- Images or footage of distressed family members are published without consent.
- Private details of the circumstances of a death are published without justification and in a manner that is gratuitously intrusive.
Clause 4 must be read alongside the broader privacy and intrusion provisions of the Code. The full guide to intrusion into grief covers the ethical framework and how IPSO has applied Clause 4 in recent adjudications.
IPSO Clause 5: reporting suicide and self-harm
Clause 5 of the IPSO Editors' Code states that when reporting suicide, care should be taken to avoid excessive detail of the method used. The Editors' Code Guidance cross-references the Samaritans Suicide Reporting Guidelines as the principal source of best practice on this issue.
The Samaritans guidelines, updated periodically and available from samaritans.org, advise journalists to avoid: detailed descriptions of the method or location; presenting suicide as a solution to problems; over-simplifying causes; and sensationalising or glamourising the act. They recommend: including information about support services; taking care with headlines and images; avoiding “suicide contagion” effects demonstrated in research literature; and being mindful of the impact on bereaved families and others vulnerable to copycat behaviour.
Following the Samaritans guidelines is not a legal obligation, but a significant departure from them in a publication regulated by IPSO will typically amount to a breach of Clause 5. IPSO has made findings against publications that have provided detailed method descriptions or that have framed a suicide in a manner inconsistent with evidence-based best practice. The full ethics guide to suicide reporting covers this in depth.
Reporting coroner's court proceedings
An inquest is an inquisitorial public inquiry, not a trial. The coroner's function is to establish who the deceased was, and how, when, and where they came by their death. Since the Coroners and Justice Act 2009, the result of an inquest is recorded as a “conclusion” rather than a “verdict”. Short-form conclusions include natural causes, accident, suicide, and unlawful killing.
The principle of open justice applies to inquests. Journalists are entitled to attend and report on inquest proceedings. A conclusion of suicide, where recorded, is a matter of public record. However, care is required:
- An inquest cannot attribute civil or criminal liability. Reporting an unlawful killing conclusion in terms that imply criminal responsibility for a named individual risks defamation liability.
- Suicide should be reported as the coroner’s conclusion, not as established fact in a moral or scientific sense. The standard of proof for a suicide conclusion is the civil standard (balance of probabilities, since 2018).
- Medical and personal evidence given at an inquest may engage the Article 8 rights of living family members. The fact that it was heard in open court does not necessarily mean all of it should be published.
- IPSO Clause 5 and the Samaritans guidelines apply to inquest reports just as they apply to other reporting on suicide.
Rule 23 of the Coroners (Inquests) Rules 2013 allows the coroner to exclude the public (but not the press, as of right) from part of an inquest in exceptional circumstances. Any exclusion order should be challenged if it is not properly justified.
Living relatives and surviving Article 8 rights
The most practically significant legal risk in post-mortem reporting is the engagement of living family members' own Article 8 rights. A story about a deceased person that discloses private medical information, details of intimate relationships, or private family matters may have a direct impact on surviving relatives who have their own reasonable expectation of privacy in that information.
The test for misuse of private information requires first that the claimant has a reasonable expectation of privacy in the information, and second that the public interest in publication does not outweigh that expectation. A surviving spouse may have a reasonable expectation of privacy in their late partner's medical history. Surviving children may have a reasonable expectation of privacy in the circumstances of a parent's death.
The strength of the public interest justification must be assessed against the privacy impact on the living individuals, not merely against the fact that the primary subject is deceased. See the full guide on misuse of private information.
Practical considerations for journalists
- 1Identify all living individuals who will be named or identifiable in the story. Each retains full defamation and privacy rights regardless of any connection to a deceased subject.
- 2Check whether any court orders (injunctions, anonymity orders) made during the deceased's lifetime remain in force. They bind the journalist even after death.
- 3Follow IPSO Clause 4 when approaching bereaved relatives. Sympathy and discretion are required from first contact. Do not persist after refusal.
- 4Apply the Samaritans guidelines and IPSO Clause 5 to any story involving suicide or self-harm, including inquest reports.
- 5When reporting an inquest conclusion of suicide, report it as the coroner's conclusion. Follow Clause 5 on method detail.
- 6Do not report inquest conclusions as establishing criminal or civil liability. An unlawful killing conclusion is not a criminal conviction.
- 7Private medical or personal information about the deceased that would engage the Article 8 rights of living relatives should be disclosed only where the public interest clearly outweighs the privacy impact on those relatives.
Key distinctions at a glance
Defamation — deceased
No defamation claim can be brought by or on behalf of a deceased person. However, living named parties retain full defamation rights and the serious harm threshold (DA 2013 s.1) applies to them.
Privacy — deceased
No misuse of private information claim by the estate. But living relatives may have their own Article 8 rights engaged by disclosure of private information about the deceased.
IPSO Clause 4
Requires sympathy and discretion in approach and publication. Prohibits persistent intrusion after refusal. Does not prevent reporting on death but governs how it is done.
IPSO Clause 5 / Samaritans
Avoid excessive method detail in suicide reporting. Report as coroner's conclusion, not established fact. Include signposting to support services. Breach risks IPSO finding.