Comments by Minister for Justice Charlie Flanagan in support of legislation against photographing and filming gardaí have been widely criticised by opposition and civil society groups.
Speaking on RTÉ Radio on Monday afternoon about alleged online threats made against a garda who was policing the removal of housing protesters from a property in north inner city Dublin last week, Mr Flanagan said he would be in favour of legislation outlawing the recording of gardaí.
Such proposals are “something that can be favourably looked at”, he said.
Later, Mr Flanagan returned to the topic on Twitter, saying “transparency is vitally important” but that he is concerned about “the public order dimension of gardaí having multiple mobile phones in their faces as they try to go about their policing”.
TJ McIntyre, a law lecturer in UCD specialising in digital technology, said any measures to ban recording would likely be unconstitutional.
“Anything to restrict your right to film would have to be justified by some clear and compelling evidence and proportionality,” he said. “ Any sort of blanket prohibition would be clearly in violation of freedom of expression under the Constitution and under the ECHR [European Court of Human Rights].”
Impeding their duties
Mr McIntyre said gardaí already had powers to move people along if they are impeding their duties.
The Irish Council for Civil Liberties said it was “seriously concerned” by the Minister’s comments.
“A blanket restriction on freedom of expression, which would criminalise ordinary members of the public for sharing information about public events, is not the answer to the challenges that gardaí are called to deal with on a daily basis,” it said in a statement.
It pointed to guidelines, based on ECHR case law, on freedom of assembly from the Organisation for Security and Cooperation in Europe (OSCE) which say “photographing or video recording of the policing operation by participants and other third parties should not be prevented”.
The National Union of Journalists (NUJ) said it was also gravely concerned.
“Those who exercise authority must have a reasonable expectation of public scrutiny and this applies, in particular, to the Garda Síochána and Defence Forces.
“It is inevitable that those who exercise great power over citizens should be subjected to the greatest scrutiny and should be required to meet the highest ethical standards.”
Footage of gardaí and protesters played a key role in the 2017 trial of water charges activists accused of the false imprisonment of then tánaiste Joan Burton. Solidarity TD Paul Murphy and five other men were acquitted of all charges.
“If filming gardaí on duty was made illegal, I and other Jobstown defendants could be in jail right now,” Mr Murphy said yesterday. “Video evidence shown in court, which contradicted Garda testimony, was crucial in our acquittal.
“Of course, no garda or anybody else should be abused or threatened on or offline. However, using isolated incidents of abuse to push for legislation like Flanagan proposes represents a very cynical exploitation of that abuse in order to undermine civil liberties.”
Fianna Fáil, Labour and Sinn Féin also criticised the remarks. “We need to be careful about knee-jerk responses to recent events,” said Fianna Fáil justice spokesman Jim O’Callaghan.
“Making it a criminal offence to photograph gardaí would undermine the fact that policing is a very public profession. The Garda have nothing to fear from their work being observed in a transparent way.”
Labour justice spokesman Seán Sherlock said such legislation could “hamper genuine free and open press coverage of certain types of event”.
His Sinn Féin counterpart, Donnchadh Ó Laoghaire, said Mr Flanagan appeared to be coming up with policy “on the hoof”.
“It is clear that very little, or perhaps no thought, has gone in to his recent proposal to ban photography of gardaí. It is impractical and unworkable, not to mind undemocratic as an attack on freedom of the press, and undermining the ability to report gardaí for misconduct.”