Brian Lenihan Jnr (Dublin West, Fianna Fail)

I would like to reply to the point as it is a serious one. Section 38 provides for current law, that libel defamation is one of those causes of action that ceases upon death and that one's reputation, as a matter of legal action ability, does not survive one's death. There are good reasons of policy for this. The tort is necessarily personal and intimate in character and the principal witness is not available to prosecute the claim in a defamation action.

Concern was expressed at an earlier stage in Committee about incidents that have taken place in this context and clearly it is a concern I share. I made that clear in Committee. I have said to the press council that the first matter to which I want it to attend is put in place a proper code of practice to bring an end to this. I made it clear to the council that if it did not address it, I would deal with it as a first priority in the Privacy Bill because first and foremost the wrong being done is the wrong to the privacy of those who mourn the person whose reputation is traduced in this manner.

One of the difficulties of dealing with this subject in the province of defamation law, as distinct from the province of privacy, is that once one starts to legislate in this area in defamation law, one inhibits the writing of obituaries. I am sure that no one in this House would want to inhibit the writing of well-researched obituaries, which necessarily have to contain some candid, if carefully worded, comment about a deceased person. I do not want to inhibit that but I welcome that Senator Walsh raised this point. I do not agree with all the points he raised but I agree with this one. It is not an issue that will go away. I made it clear in Committee that if this issue is not satisfactorily addressed we will have to legislate in this area within the lifetime of this Government and not in the decades to come.