Legal experts have criticised proposed legislation drafted by Government in response to recommendations in the Murray Report for an overhaul of laws on accessing communication data of individuals and journalists.
Shane Kilcommins and Eimear Spain of the School of Law at the University of Limerick highlighted three areas, including two key recommendations in the Murray Report which are completely absent from the proposed laws.
The general scheme of the Communications (Retention of Data) Bill 2017 will replace the 2011 act under which state agencies, such as the gardaí, can directly request communication data from service providers.
The proposed scheme states that all requests will first have to be authorised by a district court judge.
But the draft legislation does not contain specific recommendations in Murray regarding the protection of journalists’ data, including that all requests must go before a High Court judge.
“This is surprising,” said Mr Kilcommins. “There are very few categories of privileged communication existing in Irish law — journalists and their sources is one such category.”
He said journalistic sources have been specifically recognised by the European Court of Human Rights and in the Irish courts.
“A number of judgments have emphasised the importance of the protection of journalistic sources for press freedom in a democratic society and the potentially detrimental effect that surveillance or disclosure would have on the exercise of that freedom,” he said.
“The Murray Report made a very sensible recommendation that the amending legislation should include a provision expressly prohibiting access for the purpose of identifying a journalist’s sources except in very limited circumstances and subject to authorisation by a judge of the High Court.”
A second key recommendation in the Murray Report — for an independent and resourced monitoring body to oversee the service providers — is also absent from the general scheme.
“The Murray Report placed a strong emphasis on the need for constant and continuous oversight by an independent supervisory body of the security measures adopted by service providers of retained communications data,” said Mr Kilcommins.
He said Murray had reviewed the jurisprudence of the European Court of Human Rights and found that a resourced and powerful oversight body was an important means of vindicating individual rights.
The bill also appears to repeat the provisions for a High Court judge to review the operation of the process.
“The ex-post facto [retrospective] nature of such reviews has previously been criticised, particularly having regard to their thoroughness,” said Ms Spain.
She said the previous reports were typically short, one or two pages, with very little alteration.
“The Irish Human Rights and Equality Commission described that framework as ‘light touch, and not human rights compliant’.
“It is important that future reviews are robust and focused to ensure that they take seriously the privacy rights of individual citizens.
“Though the bill retains such reviews, it should be pointed out that it does seek to greatly enhance the instances where prior judicial authorisation will be necessary,” she added.