PROPOSED PRIVACY LAWS CHANGES WOULD HIT FIGHT AGAINST CRIME

GARDAI working undercover on drugs, crime or terrorist operations could
soon face serious limitations on their work if proposed changes to the
privacy laws are effected by the Dept. of Justice.

The Law Reform Commission has recommended a new set of civil and criminal
offences to protect against invasion of privacy using surveillance technology.

The report could also have significant ramifications for the media as it
suggests a number of legal curbs on their work, while providing for the
defence of public interest.

The Commission recommends gardai acquire surveillance warrants from the
District Court for State surveillance of private places. Unlike
phone-tapping, where gardai are required to get prior authorisation, gardai
do have to get a warrant at present to carry out surveillance.

A Garda spokesman refused to comment on the proposal. However, senior
officers said the proposals, if implemented into law, would have serious
implications for undercover operations, in particular, those of the Garda
National Drugs Unit and Special Branch.

In a recommendation which could have implications for the media, the
Commission proposes giving individuals the right to sue for the abuse of
any material obtained by way of privacy-invasive surveillance through
disclosure, dissemination or publication. The media will be entitled to
claim public interest as a defence.

However, the Law Reform Commission does not believe that the media should
be allowed self-regulation in this area and recommends giving the courts
discretionary powers to decide what is in the public interest.

The National Union of Journalists welcomed the public interest defence, but
expressed reservations about the proposal to remove self-regulation and
give judges discretionary power over the media.

On the civil front, the Commission also proposes a new tort of harassment,
for which there are no defences. It also recommends a civil tort directed
against any form of surveillance that "violates an individual's reasonable
expectation of privacy". Certain defences will allow private investigators
to claim the defence of a person's rights as a legitimate reason for the
surveillance.

On the criminal front, the Law Reform Commission proposes making it an
offence to plant a surveillance device in a private dwelling or use such a
device to spy on a private dwelling; to trespass on a private dwelling with
a view to obtaining personal information; or to use a surveillance device
to spy on a private conversation.

A number of defences would apply including lawful authority, the detection
or prevention of crime by gardai, and the protection of one's own
legitimate rights, or the protection of others.

Checked-by: Mike Gogulski