Michael Jackson Leaving Neverland documentary and why we shouldn’t be free to destroy the reputations of the dead

When anguished pop superstar Michael Jackson died some ten years ago there was hope in many quarters that he had found peace at last.

But even in death, scandal continues to torment him. First came the ongoing controversy over the legitimacy of three songs on a posthumous album.

Then, in May 2013, a choreographer who Jackson befriended in the late 1980s went on television to allege that he had been sexually abused by Jackson when he was a child.

The man, Wade Robson, had previously testified under oath in defence of Jackson in the 2005 child molestation trial, claiming Jackson had “never” touched him.

But when Jackson was no longer around to defend himself, Robson changed his mind, citing a repressed memory. He was later joined in his accusations by another young Jackson friend, James Safechuck.

Robson and Safechuck sued Michael Jackson’s Estate and then the companies it controlled. But in December 2017 a judge dismissed the lawsuit, ruling that they had filed it too late.

The Michael Jackson Estate claimed it was “always about the money rather than a search for the truth”.

But Robson and Safechuck weren’t done there. Last week, news broke that HBO and Channel 4 had produced a documentary accusing Jackson of sexually abusing pair of young boys.

Titled Leaving Neverland,  the two-part film will debut at the famed Sundance Film Festival in Utah, USA, later this month and then air on the respective networks this spring.

“Two boys, now in their 30s, tell the story of how they were sexually abused by Jackson, and how they came to terms with it years later,” the synopsis said.

Anyone reading this who has no knowledge of these accusers and their case would assume this abuse happened as a matter of fact.

But there is zero evidence that it did, these are merely claims.

Jackson can’t defend himself and his estate and family possess no powers to stop the documentary from being released.

Everything under the sun can be said by the media about dead individuals like Jackson and there is nothing anyone can do about it.

So why is it that we are free to destroy the reputations of those who are no longer with us?

Under law in the UK and the US, the dead cannot be defamed. This is because the view is that reputation is a personal right which ceases to exist when a person dies and it can no longer be damaged.

Defamation is also deemed to be a personal legal action which cannot be assigned or brought on someone’s behalf.

Jackson’s nephew speaks out on the documentary:

But while Jackson might be dead there’s still a huge amount at stake.

Most importantly the impact of such heinous allegations on his children, who will be profoundly affected by more assertions that their father was a child abuser.

Jackson’s reputation around the globe also made a steady recovery since that damaging trial in 2005 which saw him acquitted of all charges.

When Jackson announced his mega comeback in early 2009 he was viewed as the King of Pop once more and his death only enhanced that notion further. Now people speak more of Jackson’s music and legacy than the circus that was his personal life.

But this documentary will undo much of that progress.

So is there any hope for the family? As relatives of Jackson do they have any rights?

Interestingly, when ruling on a case in 2014 ( Putitstin v Ukraine ) in which the applicant complained that his dead father had been defamed in an article, the European Court of Human Rights accepted that the reputation of a deceased member of a person’s family may come within the scope of article 8 of the European Convention on Human Rights.

This is because the reputation may, in certain circumstances, affect a living relative’s right to respect for a private and family life.

In the case of Putitstin v Ukraine the applicant lost the case on the grounds that the impact on him was very little.

While rejecting the case the court said that a claim on the basis of breaching a person’s rights to a private and family life could have succeeded.

But although the European Court has considered a number of cases that related to the reputations of deceased individuals, as yet, none have succeeded.

I can hear the chorus of cries – what about Jimmy Savile? Yes, it was only in death that his horrific crimes were truly uncovered and that his victims felt able to come forward.

But there’s a marked difference.

After Savile’s death police launched a criminal investigation into allegations of child sex abuse spanning six decades.

Officers pursued more than 400 lines of inquiry based on the testimony of 300 potential victims from 14 police forces across the UK.

If the authorities were investigating Jackson post-death, if there was evidence of wrongdoing this would be an entirely different scenario. There could be no complaints.

But the media have a responsibility to ensure that what is published or broadcast is true.

Without the evidence how can HBO and Channel 4 be sure that Robson and Safechuck were indeed abused?

Of course the grievances of relatives, and fans in this case, should not have an impact on the uncovering of uncomfortable truths through investigative journalism.

But therein lies the problem – no investigative journalism or police investigation has uncovered any wrongdoing by Jackson.

So even in the absence of evidence, the media has the power to make the world believe that people like Jackson are sinister characters.

That doesn’t sit right with me.

Reporter and author Mike Smallcombe has written about Michael Jackson for several years, including the biography Making Michael.