The law allows the media to say what it likes about the dead, without fear of a libel action. But here and abroad, there have been many efforts to find legal ways to protect the reputation of the deceased, writes Michael Kealey.
Liam Lawlor's death in tragic circumstances in Moscow last weekend has stirred a widespread public debate about press standards. The Taoiseach has referred to a "race to the bottom" and the Minister for Justice has promised legislation establishing a press complaints commission before the year's end.
Several Sunday newspapers reported that Mr Lawlor was travelling in the company of a teenage prostitute when the accident happened. This was wrong and the airwaves have been full of the sound of contrite editors.
The case gives rise to other questions. One is: can the media say what they like about the recently deceased, however much upset that might cause? The short answer is that they can.
The Ukrainian interpreter travelling with Mr Lawlor can take a defamation action here (once she can show she was known to some Irish residents) because she was falsely labelled a prostitute. Yet Mr Lawlor's family cannot sue, despite the obvious upset the recent press coverage caused them at a particularly difficult and vulnerable time.
A defamation claim is a purely personal one. Consequently, a false statement about a person who is dead when it is made does not give rise to a claim on behalf of his estate, no matter how maliciously made. Libel law also differs from the general rule that where a deceased person had a cause of action at the date of his death, the claim survives for the benefit of his estate.
A cause of action in defamation dies with the plaintiff. Even if proceedings have been started, a defendant will escape liability if the person bringing the action dies before it comes to trial.
This gives rise to hard cases. An Irishman, Brendan Woolhead, was living in London in February 1996. He was on a double-decker bus when an IRA man, Edward O'Brien, was blown up and killed by his own bomb. Two other people were killed in the blast. Mr Woolhead, who suffered a fractured skull and pelvis in the explosion, was initially regarded as a suspect and placed under police guard in hospital. It was later shown that he had no involvement in the bombing.
A number of newspapers wrongly alleged that Mr Woolhead was in the IRA. Some of the coverage was especially hurtful. The UK edition of the Sun headed its story: "One IRA man dead: one sadly clings to life." (The word "sadly" was removed from the Irish edition).
Mr Woolhead took defamation proceedings against a number of newspapers, including the Sun. Some settled quickly and paid damages. The Sun did not. The proceedings continued until October 1996 when, nine months after surviving the explosion, Mr Woolhead died of an asthma attack, not linked to his earlier injuries. The Sun escaped scot-free as a consequence.
The harshness of the law has led some grieving family members to try to circumvent it by bringing novel cases. Elizabeth Hilliard was the widow of a Church of Ireland clergyman who had been killed in horrific circumstances.
The Phoenix magazine reported that Mr Hilliard had been an IRA member and had assisted the organisation with bank robberies. As he was dead, no action could be brought on his behalf. His widow however tried to bring a private prosecution for criminal libel.
Such cases are very rare because it must be shown that the accused had acted malevolently and with intent to injure. Her case failed but the presiding judge left no one in any doubt about his feelings. Having described the article as "scurrilous and contrived", Judge Gannon commented: "It is difficult to believe that either of the two individual respondents [the editor and journalist concerned] could stoop so low as to present or adopt such a mean, spiteful and wounding attack on the deceased under the guise of a commentary on his funeral."
The apparent inequities in the law led the Irish Law Reform Commission in 1991 to recommend that libel cases could be brought by the families of deceased, subject to certain conditions. There would be no right to damages; the case could only be brought by a surviving spouse or close dependants and there was a five-year time limit.
Such actions are allowed in other European countries such as Germany. Its best known case related to Klaus Mann's novel Mephisto, which was later made into a movie.
The book concerned a young actor who worked with the Nazis to further his career. Mann rather transparently based the central character on a German actor, Gustav Gruendgens, who had been a friend of his. The book was published in East Germany just after the war. When the novel was about to be published in West Germany in 1963, Gruendgens had died.
However his adoptive son and heir was able to stop publication because it would have violated the constitutionally protected honour and dignity of his late father. The German Constitutional Court decided, on the basis of the inviolability of human dignity, that an individual's reputation does not die with him. The injunction lapsed with time and Mann's book became available in West Germany in 1981.
Australia came close to changing its law but in March this year the country's attorney general dropped his plans to allow relatives of the deceased to sue, following pressure from interest groups including the media. Similar proposals have bitten the dust in the UK, New Zealand and Canada.
Here, the Minister for Justice, Michael McDowell, established a working group, under the chairmanship of senior counsel Hugh Mohan, to look at reform of the law of libel. This reported in 2003 and recommended no change to the law on defamation of the dead for a number of reasons.
Both the Irish Constitution and the European Convention on Human Rights recognise the importance of the right to freedom of expression and lay down that it should not lightly be curtailed. In death the individual's interest in his good name is said to have been extinguished, so that the right to free speech gains dominance.
To allow actions on behalf of the dead would, it is argued, interfere with the ability of historians and commentators accurately to record recent events. The possibility of actions from several disgruntled parties could have a chilling effect on the press, whose stories are recognised as "the first draft of history".
The Mohan committee believed that these, and other, matters would be best dealt with by a press complaints commission. It would have the ability to force newspapers to correct and apologise, even where the wronged party was dead, and could intervene where there had been an unreasonable encroachment upon the privacy of any person, or groups of persons, living or dead. This would encompass a grieving family.
The commission's decisions would be made quickly and at little cost to the complainants. As family members primarily want the record put straight, rather than to obtain damages, the press complaints commission seems well suited to this role. The Minister has accepted these recommendations and legislation is promised before Christmas.
It will, however, come too late for the Lawlor family.
Michael Kealey is head of the defamation and media unit at William Fry solicitors