(CN) - Finding that defamation of the dead could constitute a human rights violation, the European Court of Human Rights has opened an elusive legal door.
The case involves Ukrainian national Mikhail Putistin, who played soccer for Dynamo Kiev in the 1930s and 1940s.
When the Dynamo Kiev faced off against a team of pilots from the German Luftwaffe in the legendary 1942 "Death Match," Putistin helped hand the Germans a defeat that was all the more humiliating because of shady officiating by an SS referee coupled with the Luftwaffe team's poor sportsmanship and use of physical threats.
The Nazis had the last word, however, when the Gestapo arrested some of the Dynamo Kiev players and sent them to a concentration camp, four of whom were eventually executed.
In orchestrating the arrests, the Gestapo received help from other members of the Dynamo Kiev team.
Putistin was one of the team members arrested and sent to the Syrets concentration camp, but he survived the Holocaust.
The game and its stories became legend throughout the now-former Soviet Union. In 2001 - ahead of planned 60th anniversary celebrations of the match - the Komsomolska Pravda newspaper printed a story indicating that, while the four players who were executed worked for a bakery, the other players worked for the police and collaborated with the Gestapo.
The story made no mention at all of Putistin.
Putistin's son Vladlen sued the newspaper for defaming his father by implying that the elder Putistin aided the Gestapo since he had not been executed. Indeed, Vladlen has spent the better part of the last 14 years suing newspapers all over the former Soviet Union for minute inaccuracies or omissions in the reports about the Death Match.
The son eventually took his case to the European Court of Human Rights where he argued that his family and his deceased father had the right to expect that false information disseminated in the press be corrected under the Ukraine's constitution, as well as the right of privacy under the European Convention on Human Rights.
In its ruling, the Strasbourg court said that the reputation of a deceased member of someone's family can have a damaging effect on the private lives of the entire family - therefore falling under the scope of the convention.
The court also noted that in Putistin's case, however, the courts that rejected his claims also had to balance the freedom of the press to report the story as also guaranteed by the convention. And it added that in each of the newspapers' stories, Putistin's father was either mentioned indirectly or not mentioned at all.
"The domestic courts were obliged to have regard to the rights of the newspaper and the journalist and had to balance these against the rights of the applicant," the court wrote. "The court notes that whilst the article did not purport to contribute directly to an historical debate, it nevertheless constituted a form of participation in the cultural life of Ukraine in that it informed the public of a proposed film on an historical subject. It was neither provocative nor sensationalist. Against the newspaper's right to freedom of expression, the remoteness of the interference with the applicant's Article 8 rights had to be weighed.
"In these circumstances, that is, where the applicant's Article 8 rights were marginally affected and only in an indirect manner by an article which reproduced statements by the maker of a proposed historical film, the court considers that the domestic courts did not fail to strike an appropriate balance between the applicant's rights and those of the newspaper and the journalist," the court concluded.
In a concurring opinion, Judge Paul Lemmens underscored that defamation of the dead can damage the living - but only in "relatively exceptional circumstances."
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