Colin Murphy: No laws broken, but garda bid to obtain X data ignored precedent on journalist privilege

As published in the Irish Independent

On June 13 last year, a garda went into the District Court in Dublin and asked for, and received, an order to obtain the private correspondence of an Irish media outlet. This happened without the media outlet being present, or being notified. To all practical purposes, then, it happened in secret.

The correspondence consisted of the outlet’s direct messages on the social media platform X. Though most of what happens on X is public, direct messages, or DMs, are a form of private communication that has become roughly equivalent to text messages or emails. Journalists often use them to contact potential sources.

The order empowered the garda to go to the Dublin office of X and demand copies of all of this media outlet’s DMs, and other data, for a four-day period.

The outlet is the conservative website Gript. Gript was notified by X of the existence of this order nine days ago.

The legal department at X told Gript, in an email, that X sought to “defend and respect the user’s voice” and, accordingly, that its policy was to notify users when such requests were made. They said they had not handed over any information and advised Gript they could apply to vary or discharge the order at the district court.

John McGuirk, editor and co-owner of Gript, said it was his understanding gardaí hadn’t pursued the matter following X’s refusal to comply. He was taking legal advice, he said.

X did not explain the eight-month time lapse between the issuing of the order and X’s notifying of Gript.

I sought further comment from X and An Garda Síochána as to whether the delay had occurred in gardaí enforcing the order or in X informing Gript, but this was not forthcoming.

What were gardaí looking for? The four-day period covered the Newtownmountkennedy protests against proposed local accommodation for people seeking asylum.

Gript had a reporter present and published video of violent clashes between protesters and gardaí on its website and social media channels.

An Garda Síochána said they could not comment on the detail of ongoing investigations. In a statement, they said they had “a positive obligation to obtain all available evidence” where crimes had potentially occurred, “in order to vindicate the rights of potential victims of crime including gardaí who have been verbally and physically assaulted”.

The footage could help gardaí identify suspects

According to the court order (itself based on the evidence of gardaí), there were reasonable grounds for suspecting that videos posted to Gript’s X account “contain evidence in relation to the offences which are under investigation and will assist in identifying suspects who engaged in criminal conduct”.

This is inarguable. Whether or not any criminal act was caught on camera, the footage could help gardaí identify suspects.

I don’t know the technicalities of online video but it seems reasonable that a video file taken directly from X’s server may be of greater quality than the one that anyone can view online. Obtaining that footage would not necessarily contravene journalistic privilege, as I understand it.

But the order then makes a shift that is subtle but significant. It does not simply seek copies of the footage; it seeks “all available X account content” for the Gript account for those four days, explicitly including direct messages.

As the existence of the order suggests, this process is lawful. Unlike in other jurisdictions, journalists in Ireland do not enjoy legal privilege over the confidentiality of their sources (no more than priests enjoy privilege over the seal of the confessional).

Senior Counsel Ronan Lupton, an expert in media law, told me there was a deficiency in the law here in this regard, one which has been highlighted in various judgments and which the courts have said they would like to see rectified by the Oireachtas.

The Department of Justice told me two bills were being prepared for publication which would address this: the Garda Síochána (Powers) Bill and the Criminal Justice (Protection, Preservation of and Access to Data on Information Systems) Bill.

For now, in place of law, there is precedent. In a seminal case involving Roscommon journalist Emmett Corcoran the Supreme Court found, in 2023, the protection of sources was “integral to a free press”, under Article 40.6.1.i of the Constitution.

In that case, at an earlier stage, the Court of Appeal laid down a set of 28 principles which should be followed by gardaí when considering journalistic privilege. The effect is that gardaí should apply a particularly high bar when seeking to override journalistic privilege and should advise judges properly.

A free press cannot be subject to being meddled with by the very people it’s investigating. It’s got nothing to do with ideology

According to the Garda statement issued to the Sunday Independent, all gardaí were issued with a directive, in January 2024, informing them of the Supreme Court’s decision in the Corcoran case. Going by the cursory information in the Gript court order, however, there is no evidence that the Corcoran principles were followed.

The statement said the Garda “takes the protection of the right of journalists to report freely and in safety very seriously”.

Elaborating on this, it noted that, in 2022, the Garda established a Media Engagement Group (MEG) with the Department of Media, the Department of Justice and media representatives to provide a forum where the media could air concerns about the safety of their members.

The owner of this newspaper, Mediahuis, was one of the proponents of the MEG. McGuirk told me he had never heard of the MEG and Gript was not directly represented on it.

I like reading Gript occasionally because I disagree with it. I find its analysis overstated and alarmist, but its reporting illuminates (while amplifying) conservative concerns I might otherwise more easily dismiss.

“We are ideologically-driven media, conservative centre-right, with no pretence to be down the middle,” McGuirk told me. But whether you like or dislike Gript’s reporting, reporting is clearly what it is doing.​

In August 2018, two Northern Irish journalists, Trevor Birney and Barry McCaffrey, were woken at dawn by armed police. They were arrested and their devices, notebooks and office server seized.

The police were looking for their key source for an investigative documentary they had made with the Oscar-winning director Alex Gibney, No Stone Unturned. (McCaffrey was the reporter on the film, Birney the producer; more recently, Birney produced the film Kneecap.) The pair have since won a series of landmark legal victories against the police.

No Stone Unturned dealt with the Loughinisland massacre in 1994, when a UVF gang murdered six Catholics in a pub. The Police Ombudsman found there had been collusion. In the binary politics of Northern Ireland, this was a film whose politics would have been seen, broadly, as nationalist.

I covered Birney and McCaffrey’s case, and I was surprised to find one of their most prominent supporters was the senior Tory MP, David Davis.

Last week, I phoned Davis to ask why he had been so prominent in his support for people who may not have been ideological bedfellows. “Ideology is irrelevant,” he said.

“A free society needs a free press. A free press cannot be subject to being meddled with by the very people it’s investigating. It’s got nothing to do with ideology. It’s got everything to do with the importance of the free press and democracy.”