'Libel of the dead'

In the fall-out of inaccurate media reportage of the circumstances surrounding the death of Liam Lawlor, the issue of a change in the law so that there is a right to one's good name after death is being discussed again. Conor Brady reports

It will take a long time for the hurt and anger caused by the coverage of Liam Lawlor's death to dissipate. But with a Defamation Bill – and a proposed press council – now expected before Christmas, it is timely to consider what has been called "libel of the dead", the right to one's good name after death, and how the news media deal with these issues.

That the dead have no redress against defamation is clear in fact and explicit in law – although this reality seems to have come as a surprise to many among the general public. The issue was considered by the Law Reform Commission (LRC) in its review of defamation law in 1991 and more recently by the Mohan Committee two years ago. The LRC recommended a limited right of action by a surviving spouse within a five years limit. The Mohan Committee (headed by senior council Hugh Mohan) was against changing the law per se.

It is not a simple matter and I am not aware of any jurisdiction – common law or otherwise – in which a wholly satisfactory solution has been found. It is difficult enough to establish proofs in a case in which a plaintiff is living. It is – by definition – impossible to examine deceased persons in court. Then there is the question of remedy. Damages cannot be awarded to the dead – although they might perhaps be awarded to their beneficiaries. And there is the question of locus standi. Who should be entitled to take action on behalf of the dead?

Material is published all the time about people who, were they still living, would clearly be actionable. It is hard to think of a figure in recent Irish history who has not been written about in this way. The evidence upon which writers and historians challenge the character of such figures is often very tenuous. If they have become historically "unfashionable" there will be nobody to take up the cudgels on their behalf. A good example is Eoin O'Duffy, who has been characterised latterly as a practising homosexual in an era when homosexual acts were considered morally outrageous and a serious criminal offence.

There is no need for caution on the part of writers or publishers. O'Duffy can't sue – no more than Liam Lawlor. And perhaps, like Liam Lawlor, there is a subliminal desire among the public to have unpleasant allegations against an unpopular figure accepted as truth.

Many media practitioners will have little hesitation about "libelling" the dead – provided they are well gone, preferably by a generation or two. They may not be quite so sanguine about libelling the recently deceased – if only on the grounds that the deceased may have angry families and influential friends to make trouble about what is published.

I had two experiences of it in the years that I was editor of the Irish Times. The first concerned a recently deceased Dublin county councillor who had figured in an investigation into planning corruption, undertaken by two conscientious and competent Irish Times reporters. They wrote that this gentleman, who had a modest wage as an unskilled worker, had died leaving several hundreds of thousands of pounds in his bank account. They had evidence that he had taken cash bribes from developers. They wrote the story and included his name. A deluge of abuse came down on our heads.

The second concerned a senior business figure, linked to Charles Haughey, who died leaving many questions unanswered about his role as a fixer for the former Taoiseach. Shortly after he died, the Irish Times published a brutally frank appraisal of his activities. Again, the roof came in under the wrath of outraged friends and business acquaintances. Had we any thought for the family? Had we no respect for the dead?

In the event, the Irish Times journalists were vindicated in both instances. The Dublin Castle tribunals in time confirmed that the county councillor had been taking money in brown bags and that the businessman had been at the centre of an extensive and clever tax-evasion scheme. And there's the rub. Sometimes the reason journalists can write unpleasant things about dead people is because sources that have been hitherto unwilling to come forward will do so after the subject's death.

So what sort of changes in the law might be possible – and what changes in journalistic procedure might be possible – if we want to ensure a fairer deal for those who have passed on?

It might be possible to frame legislation entitling next-of-kin or blood-relations to take action against media that damage a deceased person's reputation. But as definitions of family and relationships change, even that may not be quite so simple.

What sort of remedy might be made available to such "plaintiffs"? Damages hardly seem appropriate – other than as a way of punishing a journalist or publisher. Perhaps some scheme of declaratory notices – in effect an apology and an acknowledgment of error – might be set up. This was more or less what the Mohan Committee preferred.

A press ombudsman or a press council, or indeed the National Union of Journalists' code of ethics, could articulate a number of principles to be followed. These might include agreed criteria for the validation of information. It might be accepted that coverage should be restrained or muted until the completion of obsequies. It might be stipulated that media organisations should have an "advocate for the deceased" whose job it would be to challenge journalists' copy or broadcasters' programmes before publication.

Considering what is done to the living in some media quarters, the dead have poor prospects. Irish journalism would do itself a favour if it could be seen to come forward with its own concrete proposals.

Conor Brady is Editor Emeritus of the Irish Times. He is a senior teaching fellow at UCD's graduate business school. His book Up With the Times has been recently published by Gill and Macmillan