Charles Flanagan (Laois-Offaly, Fine Gael)

It is important that an apology should be forthcoming at the earliest possible opportunity, otherwise the damage will be compounded. If the Minister does not propose to accept the amendment, he should set about finding an alternative that will meet the very valid point to which it relates.

I received correspondence similar to that to which Deputy Kennedy referred. I accept that a constitutional difficulty arises but I would defer to the Minister on the issue. I understand that in order for a publication which defamed a deceased person to be held to account, such a defamation would have to amount to a criminal libel. The burden of establishing such a libel is quite significant and I believe one must show that there was an element of malice and a deliberate intent to inflict damage, not only on the deceased person or on his or her memory but also on the surviving family members.

This issue was debated before the courts during the course of a case brought not so long ago by the widow of a deceased former Member of the House. I do not know whether the Minister wants or is in a position to explore the constitutional issues involved prior to the enactment of the legislation. I suggest, however, that reference be made to the matter or that consultation take place with a view to discovering what action might be taken. This is a real problem. It appears, as the case outlined by Deputy Kennedy shows, that a voluntary code, regardless of how laudable it might be, does not appear to be capable of dealing with this problem because such a code does not carry with it any legal sanction in the form of redress.

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