Updated at 6:20pm
THERE WILL BE an independent review into the law that allows for the Garda Síochána Ombudsman Commission (Gsoc) to access and monitor journalists’ phone records.
Justice Minister Frances Fitzgerald announced this evening that she had brought a memo to the government this morning concerning the recent controversy that has surrounded Gsoc monitoring phone records of journalists.
The government agreed to a full-review of the legislation, which will take three months and will be undertaken by former Chief Justice John Murray.
Last week it emerged that the organisation had studied the records of two journalists as part of an investigation into the leaking of information to the media.
Minister Fitzgerald stressed this evening that a free press “plays a preeminent role in any democratic society in fostering a full, free and informed debate.”
It is therefore of fundamental importance in any democracy that journalists should be able to carry out their legitimate work unhindered.
When questioned on why the law couldn’t be changed immediately, Minister Fitzgerald said that the law was complex and needed a full-review before it could be changed.
The review will incorporate not just Gsoc, but any organisation that is allowed to access records, including Revenue, the gardaí and the Defence Forces.
Minister Fitzgerald stressed that Gsoc was an independent body, separate from her jurisdiction, and therefore she had no information on how many journalists’ had had their phone records examined.
“Gsoc is independent so I do not have the details in relation to the cases that have been reported because that’s the business of Gsoc,” she said.
So what’s this all about?
The Irish Times reported that Gsoc launched its inquiry after a friend of deceased model Katy French lodged a complaint about coverage of her death in 2007.
Gsoc obtained the phone records to try to pinpoint whether gardaí had been in contact with certain journalists, and whether they were authorised to do so.
Minister Fitzgerald said this evening that it was important to protect journalists’ sources but also that protection of victims’ rights in criminal cases should not be jeopardised by leaks to the press.
Legislation brought in last year gave Gsoc the same power as Garda superintendents to access phone and email records. Many people have criticised the lack of independent oversight present in this process, and the National Union of Journalists has expressed concern about the situation.
A journalist’s right to protect sources is protected under Article 10 (freedom of expression) of the European Convention on Human Rights (ECHR).
It has been acknowledged formally as a constitutional principle by the Supreme Court in Mahon Tribunal v Keena and Kennedy, where journalists Geraldine Kennedy and Colm Keena destroyed leaked documents from the Mahon Tribunal to protect their source.
The Irish Council for Civil Liberties noted that this does not mean that journalists can never be forced to reveal their sources, but any order to do so must be proportionate and subject to strict oversight, for example by a judge.
Is Gsoc allowed to gain access to phone records under Irish law?
The ICCL has said that both the gardaí and Gsoc investigators can access phone records and other personal information if it is needed to assist them with an investigation of a possible crime.
In this instance, Gsoc has the same powers to investigate the gardaí as the gardaí would have if they were investigating anyone else on suspicion of an offence.
Under section 62 of the Garda Síochána Act 2005, it is an offence to disclose information received in the course of duties as a garda if the garda knows that the information is likely to have a “harmful effect”.
This includes, for example, information that is published and relates to the victim of a crime or a witness to a criminal trial, or leads to a serious infringement of a person’s right to privacy.
Section 98 of the same legisaltion gives members of GSOC the same powers as gardaí if they are investigating a potential offence. Gardaí have the power to access phone records under the Communications (Retention of Data) Act 2011.
Are stricter rules needed to protect people’s privacy?
Former Press Ombudsman John Horgan told Morning Ireland that stricter and stronger conditions should apply to Gsoc’s powers.
I don’t see that the people who are going to do the interception are the right people to make the judgement about whether this is in the public interest or not.
The ICCL said the rules in place to protect people’s right to privacy is “weak”.
In a statement, the organisation wrote: “Gsoc investigators would have to get sign off by one of the three members of the Garda Síochána Ombudsman Commission. That’s all.
Both the gardaí and Gsoc can obtain sign off for these powers without referring to any external body. A judge does not need to give permission for these records to be obtained.
However, a judge reviews the access requests made by state agencies and gives a report to the Taoiseach, at least every year. The judge can also investigate cases.
Also, if you have reason to think that your data has been requested by the gardaí, Gsoc or another state body, you can make a complaint to the ‘complaints referee’.
Members of the public
Dearbhail McDonald, associate editor and legal editor with the Irish Independent, told Today with Seán O’Rourke the situation extends well beyond journalists, as gardaí are in a position to access the phone records of any member of the public if deemed necessary.
Senan Molony, political editor with the Irish Daily Mail, told the same programme his phone records were inspected after TD Clare Daly made a complaint about a brief article he wrote about her detention after she was pulled over by gardaí on suspicion of drink driving. (Daly was later cleared in relation to the incident, with tests showing she was 33% under the allowable limit.)
Molony said Daly claimed information in his article must have come from a member of An Garda Síochána. He said gardaí who were known to him through his previous role as a crime correspondent were told they were under investigation as a result, as was the garda who trained his child’s rugby team.
What happens now?
Following the review, a change of legislation may be proposed.
Minister Fitzgerald said that review will have to be thorough, and examine international best practice
“I think what journalists have the right to is the strongest possible protection that we can provide under the law to protect their sources,” she said.
“But as I have said there are often balances of interest in relation to an investigation and the public interest has to be considered as well.”
The ICCL has said the review “must be independent, transparent, and use human rights standards around data protection and privacy as key benchmarks”.
The organisation called for “particular attention” to be paid to the case law of the European Court of Human Rights under Article 8 (right to privacy) of the European Convention of Human Rights, as well as relevant case law of the European Court of Justice.
“The recommendations must be published and acted upon promptly, with a clear implementation schedule,” it adds.
With reporting from Cormac Fitzgerald
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