TJ McIntyre: Trawling a journalist's phone records can only ever be OK when a judge approves it
Published 15/01/2016 | 02:30
Yesterday's revelation that GSOC has accessed the mobile phone records of two journalists has caused great concern in the media, with the NUJ describing it as a "fishing expedition" that will compromise the ability of journalists to protect their sources.
For crime reporters it raises the prospects that they may now be under surveillance on two fronts - this new GSOC power to access phone records comes on top of existing concerns that garda management has been monitoring communications to identify gardaí alleged to be speaking to the media without authorisation.
The case relates to leaks regarding the investigation into the death of the model Katy French.
While GSOC has refused to comment, it seems it trawled through records of calls made to and from the journalists in order to identify gardaí who were in contact with them.
This type of investigation - the equivalent of identifying every person called by the journalists or who might have called them over a period of time - raises significant issues for the privacy of the journalists themselves, the privacy of other people in touch with them and, most importantly, the protection of confidential sources.
The recent experience of garda whistle-blowers Maurice McCabe and John Wilson has shown that internal channels are often not enough to tackle widespread wrong-doing.
State bodies such as An Garda Síochána are at their most responsive only when an issue reaches the point of public scandal, making it all the more important that sources be able to raise concerns with the media without fear of retribution.
This can only be done when journalists' sources are protected. As the European Court of Human Rights recognised in 1996, "protection of journalistic sources is one of the basic conditions for press freedom . . . without such protection, sources may be deterred from assisting the press and informing the public on matters of public interest".
However, the GSOC and garda powers to access phone records are a fundamental threat to this principle.
These powers are used on the basis of an internal authorisation only - there is no requirement that a judge grant a warrant before phone records are examined. This means that there is no independent assessment as to whether this type of surveillance is genuinely necessary and proportionate in a particular case.
This is not merely an issue for journalists - other sensitive communications such as those between lawyer and client or TD and whistle-blower are equally exposed to monitoring without any external approval being needed.
The lack of safeguards puts Irish law in clear breach of our international obligations.
In a strikingly similar case from 2012, the European Court of Human Rights held that the Netherlands violated the Convention on Human Rights by putting two journalists under surveillance to identify the source of leaks within the intelligence services.
While the protection of sources is not an absolute principle, the court held that it should be set aside only where an independent judge finds in advance that there is an overriding need to do so in the public interest.
However, instead of prior independent authorisation, Irish law offers at most a possible remedy after the fact.
But this is of little value to either the source or the journalist. As the European Court noted in the Netherlands case, even a successful lawsuit establishing that surveillance should not have been carried out "cannot restore the confidentiality of journalistic sources once it is destroyed". The bell cannot be unrung.
These problems are exacerbated by the lack of any requirement that a person be notified that they have been the subject of surveillance. The European Court of Human Rights has described notification as a presumptive requirement for surveillance systems, and it has been implemented in other jurisdictions such as Germany and Belgium.
But in Ireland there is no provision for individuals to be informed when surveillance against them has ended, or where it has been used improperly. It is not surprising, therefore, that while Irish law has a complaints mechanism for wrongful surveillance, in practice no successful complaint has ever been made.
It may be that accessing a journalist's phone records in a particular case is genuinely a necessary and proportionate measure in the public interest.
However, this is a decision that should be made by an independent judge - not by the investigating body - and with the journalist being notified of the fact of the access.
The current case highlights significant failings in Irish law which, if pursued by journalists or the NUJ, would almost certainly result in a finding that the law does not comply with the European Convention on Human Rights.
Dr TJ McIntyre is a lecturer in the UCD Sutherland School of Law and chair of Digital Rights Ireland