The lack of checks on accessing the private communications data of journalists is a “cause of great concern”, the State’s human rights watchdog has said.
In its submission to a judicial review on laws regarding the accessing of traffic data of journalists by state agencies, the Irish Human Rights and Equality Commission (IHREC) said that ideally law enforcement bodies should first seek a court order.
Currently, State agencies, including the gardaí, do not need any external authorisation in order to request communications data from telecommunications and internet providers.
The judicial review, led by Mr Justice John Murray, was set up by Justice Minister Frances Fitzgerald last January following revelations that the Garda Ombudsman had accessed journalists’ telephone traffic data from service providers.
The ombudsman was investigating garda leaks regarding the death of model Katy French in 2007.
It has been reported that around 62,000 requests for so-called metadata have been made over a five-year period to telecoms companies, almost all by gardaí.
Metadata does not involve content, but includes the location of the communication, the device used, the time the information/communication was sent, details of the recipient, information relating to sender and recipient and the length of communication/size of message.
Unlike interception of telephone calls (phone tapping) which requires ministerial authorisation, or covert surveillance (bugging of people and places) which requires a judicial warrant, requests for communications data is authorised internally by gardaí and other agencies.
In its detailed 45-page submission, the IHREC said: “The right to privacy in terms of journalists’ sources attracts a higher standard of protection due to additional circumstances for free expression rights under Article 10 ECHR [European Convention on Human Rights].”
It said it had been clearly established in the jurisprudence of Strasbourg [the home of the European Court of Human Rights] that a fundamental condition for the full realisation of the right of freedom of expression was that the press “must be free to provide the forum in which opinions may be expressed and must be able to provide the access to information on which free expression depends”.
Concluding, the IHREC said: “The Commission considers that the inadequacy of checks and balances on the use of the powers under review is a cause of great concern from a human rights perspective.”
It said there was a “lack of specific safeguards” for the communications data of journalists — and other professionals with duties of confidentiality.
It said that where there was a risk of a journalist’s source data being identified, a proportionality analysis would need to be carried out.
It said that “ideally”, the law enforcement body would make an advance application to a judge in private except in urgent cases — as in the UK, US and Australia.
The IHREC said the current level of oversight “appears to be limited” and not adequately resourced. “Under the current system neither the complaints referee or the designated judge have adequate time nor recompense nor technical expertise to allow them to do their job effectively,” it said.
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