Mr. Séamus Dooley:

I thank the Chairman and members of the committee for the opportunity to address the committee as part of the pre-legislative scrutiny of this Bill. I know that the committee members are busy legislators. The National Union of Journalists, NUJ, shares many of the concerns of ICCL and Digital Rights Ireland. I do not propose to reiterate much of what has been said. We especially share the concerns around the definition issue and the importance of providing adequate resources to ensure there is a digital oversight regime that is something more than a mere pretence at oversight.

This Bill has profound implications for journalists and for media organisations. The NUJ believes that the highest level of protection, under both Irish constitutional and international law, must be afforded to journalists in respect of privacy in their communications. The media plays a crucial role in maintaining accountability and transparency in the workings of civic society in a democratic state. Where the rights of the media are undermined the ability of journalists to shine a light into the darkest corners are severely curtailed. While there is an individual right of privacy afforded to citizens, the rights afforded to journalists in the exercise of their professional function are different and are rooted in a public good that extends beyond the individual rights of citizens.

The general scheme of the communications (data retention) Bill 2017 does not make adequate provision for the protection of sources or afford the level of judicial oversight recommended by Mr. Justice John Murray in his review of the legislative framework, as pointed out earlier. In the terms of reference for the review Mr. Justice Murray was asked to take into account the principle of protection of journalistic sources, the need for statutory bodies with investigative/and or prosecution powers to have access to data in order to prevent and detect serious crime, and current best international practice in this area. The committee will be aware that Mr. Justice Murray found that current data retention legislation amounts to mass surveillance of the entire population of the State and recommended a series of changes to the current statutory framework, which he found was in breach of European law. The former Chief Justice came up with an unambiguous statement in this regard. The general scheme of the Bill before the committee sets aside the key recommendations of Mr. Justice Murray, and this is as concerning as it is curious. In scrutinising the proposed legislation I respectfully suggest that the committee have due regard to the recommendations of Mr. Justice Murray.

The NUJ welcomed the establishment of the Murray review in January 2016. In establishing the review the Minister announced that it would be completed within three months. In October 2016 the former Minister for Justice and Equality, Deputy Frances Fitzgerald advised the NUJ that the report was at an advanced stage. The report was presented by Mr. Justice Murray in April 2017 but published in October 2017. Perhaps this timeline tells its own story about the urgency with which this issue has been treated.

The fact that the Minister for Justice and Equality published the Murray review and the general scheme of the Bill simultaneously is a clear acknowledgement that the two are interlinked and my comments today are predicated on the NUJ's submission to Mr. Justice Murray, which I have provided to the committee. The events leading to the establishment of the review provided a context to our submission. The NUJ was gravely concerned at revelations in January 2016 that the Garda Síochána Ombudsman Commission, GSOC, had authorised its investigators to demand access to the mobile phone records of two NUJ members on foot of its powers under section 98 of the Garda Síochána Act, exercised in the context of a disclosure request for telephone records made under section 6 of the Communications (Retention of Data) Act 2011.

We met with the Minister for Justice and Equality and with GSOC and raised our concerns with both. In the case of GSOC we had a robust but respectful exchange of views on general principles. The Communications (Retention of Data) Act 2011 covers the retention and storage of historic data pertaining to all electronic communication, including fixed line and mobile telephone, internet communication and text messages. It is being done without the consent of those affected. As Mr. Justice Murray has pointed out, the arrangement is indiscriminate in application and scope, affecting the retention and storage of journalists’ communications data pertaining to the time, date, location and frequency of a journalist’s telephone calls and can thus identify sources. Location data linking a journalist's telephone calls with those of another caller before or after a sensitive meeting in which that person was known to have been involved can fatally compromise confidential sources of information, including from whistleblowers, and it was in this context that the NUJ expressed particular concern at the actions of GSOC. The Minister subsequently announced the Murray review. The NUJ’s approach to the protection of sources is firmly rooted not just in journalistic ethics but in international conventions. Our submission to the Murray review is included in our submission to the committee.

It is worth noting that head 18 of the Bill makes provision for a High Court judge to keep the operations of the provisions of the Bill under review. Committee members will perhaps understand a degree of scepticism on our part against the backdrop of the decision not to incorporate key recommendations of the former Chief Justice into the new legislation. There is an irony in having a provision in a scheme to review, by a High Court judge, a Bill that ignores the recommendations of a former Chief Justice who was appointed by the Minister who then introduces a new Bill with lesser provisions and will get a judge to review it.

The NUJ suggests that the communications (retention of data) Bill 2017 should incorporate the recommendations on journalistic sources made by Mr. Justice Murray. For ease of reference I have included those recommendations in my submission to the committee but I do not propose to read them into the record. They are recommendations Nos. 231 to 237, inclusive, from the Murray report. It is welcome that Mr. Justice Murray recognises that the protection of journalistic sources is of vital importance to journalists in the exercise of their professional activities and the attention of the committee is drawn, in particular, to his recommendation that any exception which permits the identification of journalistic sources or which might oblige a journalist to disclose them should be subject to prior control by a judicial or independent administrative authority. Mr. Justice Murray recommends that applications be made to a High Court judge. The designation in the scheme of a judge of the District Court, or a panel of District Court judges acting as authorising judges, seems to me to reflect an overall view in this scheme that is not welcome. In a sense this decision is reflective of the low priority given under the general scheme to the recommendations of Mr. Justice Murray. In publishing the general scheme the Minister for Justice and Equality acknowledges that while there are problems with the current legislation it is not unconstitutional. This appears to set a low bar indeed. The current legislation in regard to the protection of sources is in conflict with the European Court of Human Rights and demonstrably undermines the fundamental rights of journalists. One should not approach a new piece of legislation by saying that we do not believe the current legislation is unconstitutional. It should not be the case that a journalist or any other citizen should have to go to the Supreme Court to vindicate their rights. The Minister has ignored the recommendation of the designation of a supervisory authority to ensure the legislation is not abused. This is also regrettable.

The NUJ shares many of the concerns expressed by Digital Rights Ireland, which has done so much work in this area, and the ICCL whose record needs no acknowledgement from me. In particular, we share the concern that the general scheme does not reform the structure for oversight of data retention and does not comply with EU law.

Head 22 seeks to abolish the current power of the complaints referee to award compensation to individuals whose data has been accessed in contravention of the legislation.

There is urgent need for legislative reform in this area. In regard to the issues of specific concern to the National Union of Journalists we believe the report of Mr Justice Murray provides a framework for meaningful reform. We respectfully suggest that that framework is not adequately provided in the scheme before the members this morning.