Can you speak ill of the dead? How defamation law impacts Pell’s legacy

Whatever your views on George Pell, at least one certainty has emerged since his death 10 days ago: posthumous search-and-rescue missions for the reputations of the seriously reviled are something to behold.

Witness, for instance, the claims of Opposition Leader Peter Dutton, who lamented the “modern-day political persecution” of the late cardinal at the hands of the “Victorian Labor government and its institutions”.

Or those of former prime minister Tony Abbott, who suggested Pell was an equal among saints, nay Jesus himself, such was the “modern crucifixion” borne by him through his conviction and subsequent acquittal.

And, not least, the ruminations of one Andrew Bolt, which fashioned Pell as an “innocent man” who had “died for the sins of others”. Taking this sentiment one step further was Australian Catholic University professor of law Greg Craven, who — writing in The Australian — boldly declared Pell the “ultimate victim” of the Catholic Church’s child sexual abuse scandal.

Crikey writers, for their part, instead opted for the unvarnished truth, and were duly admonished by some on social media for “rabid anti-Catholicism”, “lying” and/or for having the temerity to “defame” a dead man.

Some of this criticism seemed to rally around a variation of the ancient idea or custom that you shouldn’t “speak ill of the dead” — a phrase once traced to 6th century BC philosopher Chilon of Sparta. And the balance simply brought to the fore what has long been a legal impossibility in Australia: the idea that the dearly departed can be defamed.

Regrettably for Pell supporters, Australia is not Rhode Island, where it is unlawful to defame a dead person within the first three months of their death. Nor is it Switzerland or Germany, where defaming the deceased in the immediate decades after their death can land you a lawsuit, fine or even imprisonment.

In these places, the basic idea is that a person’s power to control their public image survives death, at least for some defined period. And it’s one some jurists have traced all the way back to the cadaver trial of 897, when Pope Stephen VI had one of his predecessors dug up and tried for perjury.

Luckily for Crikey, other news outlets and historians, the Australian Law Reform Commission’s bizarre recommendation in 1979 to reverse the law here — making it possible to defame a dead person within the first three years of their death — was sensibly ignored by the government of the day.

And so it remains the case that under Australian law, the death of a person sounds the death of their reputation.

That said, the practical reality is plainly otherwise, hence the furious attempt by the right to canonise Pell and completely rewrite history in the process. This is obviously a tall order, however, not least because the cavalcade of beliefs advanced by Pell were objectively repugnant.

He was, after all, a man who described abortion as a moral depravation worse than clergy paedophilia. A man who regularly expressed homophobic and anti-Semitic views, and deliberately conflated atheism with Nazism and Stalinism. A man who in the same breath declared few people, if any, had suffered more than the German people. And a man who helped rally the cultural right against climate action.

Worse still were his actions. Pell’s denials before the royal commission that he was ignorant of the systemic sexual abuse of children by clergy were emphatically rejected. As were his claims that he was unaware of the allegations surrounding some of the church’s most notorious paedophiles, including friend and former housemate Gerald Ridsdale.

Meanwhile, his callous treatment of countless victims and survivors of child sexual abuse were — as journalist David Marr put it — redolent of a “company man” who privileged the protection of the institution above both justice for survivors and the safety of children.

And beyond these serious failings lies the legion of (known) child sexual abuse accusations levelled against him, for which he was never tried. These same allegations were, by dint of a criminal justice system heavily skewed in favour of an accused, excluded as tendency evidence in his one and only trial for child sexual abuse.

On this footing, some of the more anodyne readings of Pell’s legacy in recent days, where he is described as a “polarising figure”, are at best charitable, and at worse, a disservice to the truth. This matters because it is often said that journalism provides the first rough drafts of history. It also matters because the long shadow of the dead can visit harm on individuals long after they’ve died.

In truth, Pell’s words and actions don’t belong to the past, where they risk being downplayed, revised or forgotten. They belong to history, for they disclose precisely who the man was.

In this one respect, Australia’s defamation laws are to be commended, for they enable history to be recorded honestly and accurately, at least once the person’s dead.