Cork TD queries law which would allow journalists' phones to be seized

New legislation on Garda powers will strengthen press freedom, not weaken it, the Department of Justice has said.

The proposed legislation would allow gardaí to seize and search journalists’ electronic devices, including phones, laptops, and data stores, and make it an offence to refuse to hand over passwords when compelled.

The new laws have been described as “shocking and sinister” by Cork TD Michael Collins.

The TD for Cork South West said: “If enacted in its current form, it will drive a coach-and-four through the protections that journalists and whistleblowers have relied upon to speak truth to power.”

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In 2023, the Supreme Court unanimously upheld the Court of Appeal’s decision that a 2019 search warrant, authorising gardaí to seize Emmett Corcoran’s phone, was invalid and must be quashed, because the district court judge was not informed that the subject was a journalist who had invoked journalistic privilege.

Mr Collins said: “Instead of building in higher safeguards, this Government is effectively trying to legislate around the judiciary’s defence of press freedom. It is a deliberate response to having been told ‘No’ by the courts.”

Independent Ireland is calling for a review of the draft bill and for the inclusion of press stakeholders in the legislative process. The party will table a private member’s bill to elevate journalistic sources to a ‘protected privilege’.

A Department of Justice spokesperson told The Echo: “An Garda Síochána have always had the power to seize electronic devices as part of a lawful search; the bill clarifies and strengthens safeguards by ensuring that electronic devices cannot be accessed without prior judicial authorisation. 

"The application for a search warrant now requires An Garda Síochána to notify the court of any known issues relating to privilege. 

"For example, if gardaí know the device belongs to a journalist, they must inform the judge at the outset.”

This would ensure that potential claims of privilege are flagged early, and no electronic data could be accessed without prior judicial authorisation, they said.

The spokesperson continued: “The bill provides for graduated levels of access, depending on the judge’s assessment of the application and any privilege concerns. This ensures that access is strictly necessary, proportionate, and tailored to the circumstances, while protecting privileged material. 

"Where privilege arises, access to the device is subject to additional court oversight. Legal professional privilege remains absolutely protected, while other forms of privilege, including journalistic privilege, are recognised as qualified forms of privilege.”