Why the Garda watchdog is now under fire over surveillance on journalists’ phones

News that the Garda Síochána Ombudsman Commission (Gsoc) accessed journalists’ phone records, in a bid to identify their sources, is back in the spotlight. But the contentious surveillance practice first emerged almost a decade ago in The Irish Times.

The difference this time around is that a similar scandal – involving the police rather than a policing watchdog – has well and truly exploded in Northern Ireland. The PSNI has said it made more than 320 applications to access journalists’ communication records over the past 13 years. Some journalists had their records accessed as part of efforts to identify their sources.

Amnesty International and the National Union of Journalists have called for an inquiry. The PSNI has said a review by a lawyer will take place. And now the scope for contagion into the Republic is a clear, especially if journalists south of the Border begin suing Gsoc, the Garda watchdog.

[ Call for Gsoc and Minister for Justice to ‘urgently’ address journalists’ phones being accessed ]

So what is this all about?

In a nutshell, several journalists working in the Republic – and who cover crime – believe they have unearthed evidence their phone records have been accessed. This evidence has been obtained after they made data subject access requests to Gsoc, which investigates allegations of Garda wrongdoing.

The journalists believe their phone records were accessed, without their knowledge or consent, as part of investigations into alleged leaks to the media from inside the Garda force.

In other words, complaints from members of the public were made to Gsoc claiming Garda members leaked information about them to the media. And in a bid to test this theory, Gsoc accessed the journalists’ phone records. The agency did so even though the reporters were not accused of any wrongdoing.

Instead, the journalists’ phone records were speculatively accessed and trawled to see if any gardaí may have engaged in wrongdoing by speaking to the journalists around the time the alleged leaks took place.

It should be said that Gsoc, like the Garda force, is permitted under law to secretly access phone records as part of investigations. However, the manner this was done by Gsoc, and the fact journalists’ records were accessed – including in cases when no allegation was made against them – is very contentious. It is a possible breach of their rights.

The European Convention on Human Rights (ECHR) offers protection to journalists, on the issue of sources. And now several of the Irish journalists are considering suing the Garda watchdog on the basis their rights have been breached.,

News that Gsoc had accessed journalists’ phone records first emerged in The Irish Times in 2016. Back then the watchdog scrutinised the phone records of Dublin-based journalists after a friend of deceased model Katy French lodged complaints about gardaí allegedly leaking information.

The commission had been granted Garda-style powers in 2015 to access phone records if required during the investigation of serious offences. The inquiry into the complaints by the friend of Ms French represented the first time the commission’s use of the new power emerged publicly.

The Association of Garda Sergeants and Inspectors (AGSI), Garda Representative Association (GRA), Irish Council for Civil Liberties (ICCL) and the National Union of Journalists (NUJ) all expressed their concern at the revelations. Gsoc defended its decision to access journalists’ phones while investigating gardaí for alleged leaks. It said members of the public who provided information to help Garda investigations did not expect to see it emerging in the media.

The then minister for justice, Frances Fitzgerald, ordered a review into the accessing of journalists’ telephone records by Gsoc just 24 hours after expressing her support for the contentious procedures.

However, the powers have remained in place in the intervening years. And now a growing number of journalists – perhaps encouraged by the fact the same trawling of colleagues’ records in the North is being exposed – are considering their legal options against Gsoc.