What "wonderful" times we are leaving in, right? A notorious liar and violator of the constitution being the US Americans' President, the media frenzy at their height of unverified bogus stories everyday, the infamy of people who are too bugged to live a righteous life, instead seduced by the profit of ratings / fast deals / attention.
It's interesting how biased the so-called "critics" are with sensationalized crap like Dan Reed chose to deliver - going the same route of evil as Martin Bashir who preferred ratings through shady remarks and manipulative editing over actual documental work - that cannot even remotely be compared to the true work of investigative journalists such as Bob Woodward.
As you can see, Michael Jackson is being lynched in the court of public opinion - as it has ever been popular since the first bogus allegations. In the USA and other countries there are CURRENTLY no laws that would stop the (malicious) exploitation of popular figures in death by defamation / slander / libel...
...
HOWEVER(!) even in the USA there are laws that protect the immediate family.
Before explaining the legal situation in the USA:
In Germany the defamation of dead people CAN be sanctioned by court since it is defined as a criminal act [named "Verunglimpfung des Andenkens Verstorbener", literally translated as "defamation of the memory of deceased people"] which according to German sections of the law §§189, 194 (2), 77 (2) StGB can be excercised by the dead person's relatives as defined by the law. However it depends whether the public's interest (and as such the freedom of the press which opens the door for con artists, unfortunately) or the relatives' interest is bigger.
With unproven serious allegations by defacto proven liars (via publicly available court documents) the family's interest might weight more. It would have to be determined by a court.
AND IN THE USA:
First, the good news: In the USA the defamation of dead people CAN also result in penalties.
And now to the bad news: Since the USA have different state laws in each state, you must look at them individually.
In general, even in the USA, deceased people, especially public figures such as Michael Jackson may still enjoy a "right of publicity" that survives death. For a good example, one that is VERY relevant to the complaints about the unfair treatment regarding Michael Jackson, there was a recent letter from the
Southern
Christian
Leadership
Conference which was founded by Martin Luther King, Jr., that gave a little insight in the core of the issue here: they found the unproven allegations "incongruent with the principles of justice and reconciliation". And guess what? The
SCLC is preserving the image and legacy of its founder Martin Luther King, Jr., a deceased human being that has also been a public figure.
Then there's the Martin Luther King, Jr. Center which has been found - via court - to have a right to protect Martin Luther King's image.
In short: the Michael Jackson Estate as Michael Jackson's legal successor can excersise these very same rights!
(for Michael's immediate family read further below)
NOW IT IS IMPORTANT TO KNOW THAT each US state HANDLES THIS DIFFERENTLY!!!
In those US states where defamation claims do NOT terminate upon death (and therefore cannot apply to an estate or heirs), you have to do the following:
(Example:
Texas Civil Practice Code 71.021 states: "A cause of action for personal injury to the health,
reputation, or person of an injured person
does not abate because of the death of the injured person")
1) file a defamation suit
2) prove that a statement was made with the actual intent to harm the public figure [= Michael Jackson] (eg it was NOT an honest mistake)
You can prove "actual malice" if the person [= Dan Reed / Wade Robson / James Safechuck] who made such a statement knew that this statement was not true at the time they made it OR if they had reckless disregard for if it was true or not.
The
US Supreme Court case of New York Times v Sullivan from 1964 has established that:
- it is necessary for a claimant/plaintiff to prove actual malice
- if it can, press reports about public figures - such as Michael Jackson - then qualify as libellous
- and VERY IMPORTANTLY: the
burden of proof rests more on the defendant (= Dan Reed / Wade Robson / James Safechuck) who has to prove that what they made public was true (rather than the claimant having to prove it was false)
Also of note:
- Any media could argument that they reasonably believed their publication to have been in the
public interest.
- you can counter this by showing that what they stated/published has caused or is likely to cause serious harm to your (or the deceased person's) reputation
- a court can then infer from the seriousness of the allegations
There are a very few exceptions - where you cannot be sued (="privileges"), let's look at them:
There is eg the act of testifying at trial. NOT the case here.
Now precisely to US Californian law and regarding the "documentary":
Anyone has the right to
- make a "fair and true report"
- in a public journal (also via communication)
- of (A) a judicial, (B) legislative, or (C) other public official proceeding
- or (D) of anything said in the course thereof
- or (E) of a verified charge or complaint made by any person to a public official
- upon which complaint a warrant has been issued.
Well, NOT the case concerning the "documentary" since it wasn't about their lawsuits (of course it's a result of them being dismissed, though), it was an "independent" story of these two liars.
But this US Californian "privilege" has extended to
- fair and true reports of public meetings
- IF it was for the public benefit.
Well, how do you define a "fair and true report"?
You need to capture the substance, gist, or sting of the proceeding. The report need not track verbatim the underlying proceeding, but
should not deviate so far as to produce a different effect on the reader/viewer.
Well, isn't Dan Reed deliberately creating quite a different effect on his audience by selling a "survival story of alleged victims" when he doesn't even look at their real life issues such as Robson's mental breakdowns - that are again in the public space - and how their stories came to be? I'd argue the public could benefit from the truth, though Reed's earnings probably could not.
Please note that a study by the
US Media Law Resource Centre had concluded that media defendants in the USA such as HBO usually prevail on appeal, thus paying no damages in 55.8% of cases.
Regarding Michael's immediate family:
Please note that the Michael Jackson Estate does not replace the immediate family's rights since Michael Jackson's family, especially his three children as heirs, are also affected by the bogus allegations and therefore could sue for defamation of their deceased father.
Michael Jackson was a resident of California. Now let's take a look at
California Civil Code, section 3344.1
"
Any person who uses a deceased personality's name , voice, signature, photograph, or likeness,
in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or persons specified in subdivision (c),
shall be liable for any damages sustained by the person or
persons injured as a result thereof."
IN GENERAL, for a first summary
Yes, you can - also in the USA - file a defamation claim, even for a deceased person.
Both the Michael Jackson Estate and Michael's immediate family could properly set up such lawsuits.
It is not that easy to prove malice, HOWEVER(!) with the well documented lies by the two persons in the documentary - available via publicly(!!!) viewable documents that are the result of court cases - and with an dishonest director named Dan Reed himself portraying as an investigative journalist with years of experience etc., yet knowingly breaking basic principles of close examination and clearly understanding how to build up a story that sells to networks and the media,
there's potential for a seminal US Supreme Court verdict in favor of Michael Jackson's innocence.