TDs have slammed proposals in a bill published two days after Christmas which could be used to seize and examine phones and electronic devices of journalists.
One TD described the controversial measure as “state-sanctioned lawfare against media freedom”, while another said that “allowing the State to seize journalists’ phones crosses a serious line”.
The Garda Síochána (Power) Bill was published by Minister for Justice Jim O’Callaghan on December 27, during the Christmas break.
It states that it seeks to make “specific provision for tailored search warrants authorising the seizure and search of electronic devices and for the assessment of claims of privilege”.
While it recognises that “legal professional privilege is protected as absolute”, it recognises no such absolute privilege for journalism, where issues of source protection are key, instead saying “other forms of privilege will be managed through a structured process, including through a determination by the High Court, under section 24, if required”.
The press release on the proposed legislation from the Department of Justice references a 2023 Supreme Court decision which upheld a Court of Appeal decision that a 2019 warrant that had been obtained by gardaí to search Roscommon journalist Emmet Corcoran’s home and seize his phone, was invalid and should be quashed. Mr Corcoran had claimed journalistic privilege in relation to sources.
The judgments of the Supreme Court justices iterated the importance of journalistic privilege, emphasising the significance of protecting journalists’ sources in a democracy.
It was argued in the case that the 1997 Criminal Justice Act permits the District Court to conduct a balancing act between public interest and the rights of journalists – and Justice Gerard Hogan of the Supreme Court urged “urgent” legislative action to address the “systemic” problems of the 1997 Act.
However, the proposed legislation does not recognise journalistic privilege as absolute.
Offaly TD, Carol Nolan said that “there is now a clear sense that the entire regulatory climate around issues such as free speech, media freedom and protected disclosures is rapidly moving from a creeping authoritarianism to a full blown political endorsement of methods that are deliberately designed to create a climate of fear.”
She said that her “concern is that under the guise of legitimate objectives such as empowering our law, we are in fact in the process annihilating basic freedoms.”
“This is state-sanctioned lawfare against media freedom,” the Independent TD told Gript this morning.
Independent Ireland TD, Ken O’Flynn, said that “allowing the State to seize journalists’ phones crosses a serious line”. The Cork deputy said that “source protection underpins investigative journalism. ”
“Weaken it and accountability suffers,” he added. “Policing matters. Public safety matters. Free speech matters more. A confident democracy does not fear scrutiny.”
Journalist Don Lavery responded to Deputy O’Flynn’s remarks by saying: “Exactly. We protect our sources – or we don’t have Journalism. We have Pravda.”
“CHILLING FACTOR”
The head of the National Union of Journalists (NUJ), Séamus Dooley, told Extra.ie that the legislation might “run the risk of not protecting journalists’ sources”.
“Journalists aren’t entitled to absolute privilege, but we would be looking for detailed clarification as to what the Bill will actually do in practice. We would be concerned at anything which would threaten sources, or also would serve as a chilling factor for sources, in terms of people coming forward,” he told reporter Brian Mahon.
However, the Department of Justice asserts that the Bill would provide a framework for determining whether material is subject to privilege and for safeguarding such material in a manner that protects constitutional rights.
Minister Jim O’Callaghan had previously been asked during The Tonight Show about a court order obtained by An Garda Síochána to access the private messages of Gript journalists.
The order, granted in June 2024, sought access to the media outlet’s direct messages on X (formerly Twitter), as well as login data and IP addresses.
The request was linked to Gript’s coverage of altercations between Gardaí and protesting members of the public in Newtownmountkennedy, which included footage of Gript journalist Fatima Gunning being pepper-sprayed by members of the Public Order Unit. The order was ultimately unsuccessful, as X refused to comply.
As Ben Scallan reported at the time: “the revelation that An Garda Síochána used a Section 63 order—originally introduced to combat organised crime and terrorist financing—to seek access to a media organisation’s private communications has sparked debate.”
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