The constitutional and European Convention rights of a provincial newspaper editor were breached when gardaí got a search warrant for his home and seized his phone, it has been claimed before the High Court.
The seizure took place as part of an investigation into violence following a home repossession in Stokestown, Co Roscommon, in December 2018.
Oncor Ventures, trading as Strokestown-based 'The Democrat', and its editor Emmett Corcoran, are seeking, among other things, High Court declarations that the search warrant issued by District Judge James Faughnan in December 2018 was invalid and should be quashed.
The case is against the Garda Commissioner and the DPP. The Commissioner opposes the action and DPP is not participating.
It is claimed the District Judge was not informed Mr Corcoran had invoked journalistic privilege at a voluntary meeting with gardaí before they sought the search warrant.
The gardaí claimed there was no such privilege "known to law", the court heard.
Mr Corcoran also wants the phone returned and a declaration that in issuing such a warrant there is a heavy onus on the judge doing so to have regard to journalistic privilege.
In April last year, Mr Corcoran and Oncor, which he is also a director of, got an injunction preventing the Commissioner from going through data on his phone which had been seized when gardaí arrived with the warrant at his home.
Gardai wanted it as part of evidence in their investigation because Mr Corcoran was one of the first people to arrive at the scene of the repossession incident in Strokestown when a number of vehicles were set on fire by armed and masked men. Security men were also assaulted during the incident.
Mr Corcoran, who shot video before the fire brigade arrived, later refused to say who had tipped him off citing journalistic privilege but says he did provide all the footage he shot.
Opening the case today, his counsel Michael McDowell SC said the phone is now in the custody of an independent member of An Garda Siochana.
The application for the search warrant was made to Judge Faughan who had already recused himself from proceedings related to the December 2018 incident, counsel said.
That application by gardaí was also fundamentally flawed because that same judge was not informed journalistic privilege in relation to material on the phone was being invoked, he said.
While Mr Corcoran was quite happy to provide gardaí with the video evidence he did not want to disclose who tipped him off, he said.
Mr McDowell said the EU Council of Ministers had given guidelines for member States to ensure there are protective measures in place to ensure those investigating criminal or civil matters have a clear statutory framework in which search and seizure can be sought to protect journalistic rights and privacy.
However, while in England they have the Police and Criminal Evidence Act which defines "journalistic material", it has not been the subject of any statutory formulation in this country, he said.
The case resumes on Thursday before Mr Justice Garret Simons.