The Government was advised before it brought in a controversial new law on asylum-seekers that it could be open to constitutional challenge. Under it the media must now get the consent of the Minister for Justice to identify asylum-seekers.
The measure could also be challenged on the basis that it violates the right to freedom of expression contained in a major international human rights treaty, according to a report commissioned by the Department of Justice.
The requirement for written permission from the Minister to identify asylum-seekers in the media has been condemned by the National Union of Journalists and the Irish Refugee Council as potential censorship. The Department has said the measure was to protect asylum applicants' rights.
The provision is in the Refugee Act, 1996, which came into force last week. Under it, media outlets which fail to obtain the consent of the Minister and the asylum-seekers before identifying them face fines of up to £1,500 or up to a year's jail, or both. The Minister cannot "unreasonably" withhold consent.
Other European states including Britain, Germany, the Netherlands and Sweden have laws to protect the identity of asylum-seekers. However, if asylum-seekers choose to reveal their identity, permission is not needed.
The Department of Justice commissioned two UCD academics to study refugee law in Europe. Published last year, it concluded that the protection of asylum-seekers' identity in the Act was clearly in line with European policy generally.
But "it is not inconceivable" that the provision could be challenged as conflicting with the constitutional right to express opinions and convictions freely.
The measure could also be challenged for inconsistency, with the right to freedom of expression contained in the European Convention on Human Rights, which the Government is due to incorporate into domestic law, according to the report.
The State would be in a strong position to justify any claimed breach of a violation of the convention's right to freedom of expression by a journalist, provided that the Minister's consent was not unreasonably withheld, the report concluded.
The Irish Refugee Council has said it is very concerned that the Minister appears to have power to decide which asylum applicants can tell their stories. The NUJ has said many asylum-seekers have fled repression in their countries of origin and are now facing curbs on freedom of expression here.