2011 may be a bad year for the consumers of news. Parliament is scheduled to this year pass a series of laws that could adversely influence the free flow of information to readers of all publications reporting matters South African.
Government insists this is not the purpose of the legislation, but critics note laws must not be judged by good intentions but by the potential for bad outcomes. Draft laws currently before Parliament influencing the free flow of information include the Protection of Information Bill, the Protection of Personal Information Bill and the Protection from Harassment Bill.
Once enacted they will join a number of existing laws that for reasons good or bad already restrict your access to information and news. These include the current Protection of Information Act 84 of 1982, the Defence Act 42 of 2002, the Protection of Constitutional Democracy Against Terrorism and Related Activities Act 33 of 2004, the Promotion of Equality and Prevention of Unfair Discrimination Act 4 of 2000, the Criminal Procedure Act 51 of 1977, the National Key Points Act 102 of 1980, the Films and Publications Act 65 of 1996, the Films and Publications Amendment Act 3 of 2009 and the Regulation of Interception of Communications and Provision of Communication-related Information Act 70 of 2002. Further limitations in law include limitations on court reporting imposed by the Children’s Act 35 of 2005, the Child Care Act 74 of 1983, the Divorce Act 70 of 1979, the Maintenance Act 99 of 1998, the Magistrates’ Court Act 32 of 1944 the Inquests Act 58 of 1959 and others. This is in addition to the common law delict of defamation (libel or slander) and the common law crime of crimen iniuria (criminal defamation).
Waiting in the wings is a National Key Points and Strategic Installations Bill and possibly a “Internet and Cellphone Pornography Bill” and maybe another establishing a Media Tribunal that in the worst case could jail journalists.
I have not previously pronounced on this as enough others have, especially on the Protection of Information Bill and Wikileaks. defenceWeb have reported extensively on both. As a starting point, I suffer the rather liberal view that the state is my servant and I have a right to know what it is doing (on my behalf). From this follows that the state, in principle, should have no secrets; where it must keep confidences, these should be for a limited time only (as is generally the case in the United Kingdom with the “30 year rule”) or for specific accepted purposes only (such as protecting the identities of children in trouble with the law, for example).
I’m also a bit of a Philistine on the idea of state security: to me that is a misdirection, especially in a Constitutional democracy. The state (and its executive, legislative and judicial organs) is a creature of the Constitution. Logically, the focus must be on protecting the integrity of that founding compact, not just the state. This is the case in Germany where the internal security agency is known as the Federal Office for the Protection of the Constitution (German: Bundesamt für Verfassungsschutz, BfV). To me, this is correct. A focus on the state often leads to a focus on the security of the executive and from there the ruling party. This was certainly the case with the BfV’s predecessor, the Geheime Staatspolizei (Gestapo), Hitler’s infamous Secret State Police.
But back to the Bills: Herewith a few notes on what the draft laws intend, and what they may mean for you as a defenceWeb reader:
The Protection of Information Bill
In terms of intent, the Protection of Information Bill [B6-2010] seeks to modernise the information lifecycle management (ILM) regime for the state and state entities, as well as regulating “private intelligence”, a new development. The current system “requires the spending of a great deal of government resources to protect a mass of information that does not actually require protection, a memorandum attached to the 2008 version further notes.
“The aim then is to provide a statutory framework which provides direction to those in government who are charged with information protection; substantially reduce the amount of state information that is protected from disclosure; provide more effective protection to that information that truly requires safeguarding; and to align the information protection regime with the values, rights and freedoms enshrined in the Constitution.”The Bill also prescribes private intelligence and proscribes foreign intelligence organisations in SA. A separate background note added that in addition to ILM, the Bill also aims to “fill the existing legal gap in relation to threats faced by the state from private intelligence companies, or individuals engaged in private intelligence collection by identifying and criminalising those actions that undermine the security of the state. “Of particular concern to the state, has been the extent to which individuals with links to foreign intelligence structures attempted to undermine statutory national intelligence structures by peddling false information aimed at sowing dissent. The draft Bill criminalises such conduct.” Nothing wrong with that.
Then-Ministry of Intelligence legal advisor Kerensa Millard in 2008 told Parliament the committee the ministry did not plan to regulate “business intelligence” professionals, researchers or investigate companies that provided business decision support and strategic consulting. That is also good.
So what is the potential harm of this Bill? My answer is that the Bill will encourage self-censorship and uncertainty. The statutory SA Human Rights Commission has said that “while legislation like the Promotion of Access to Information Act has been slow to take root, new legislation like the Protection of Information Bill can quickly negate gains made by reinforcing a culture of conservatism and secrecy within the public service to the detriment of our nascent democracy if classification is too easily permitted to become the reason for nondisclosure.…”
IDASA, a nongovernmental organisation that seeks to oil the wheels of democracy, through sponsoring the Parliamentary Monitoring Group (PMG) that minutes portfolio committee meetings, for example, last year told the ad hoc committee on the Bill that the language of the draft law then before it meant that public servants are likely “to feel compelled to be cautious and to over-classify, unnecessarily restricting even legitimate access to information.” In other words, cautious officials may classify information “just in case”, thereby reducing the free flow of information. Mail & Guardian editor Nick Dawes warned MPs the law, as drafted, “would also be a problem for MPs who need access to information to satisfy their constitutional mandate for effective oversight of government departments and ministers.”
What information remains in free flow may also never reach readers: The Bill lays down a number of stiff penalties for the offences created, including jail time of between three and 25 years without the option of a fine, the latter for espionage and hostile activities involving information classified top secret. Secret information is worth five to ten years at the President’s pleasure and confidential information three to five. The latter penalty also applies to anyone failing to report their possession of classified information to the police or State Security Agency (SSA), regardless of how it was acquired. They say one person’s terrorist is another’s freedom fighter. I dare add one person’s incisive journalism is another’s hostile act. Considering that DoD invitations to media events are routinely classified “Restricted”, this could spell trouble. Ditto briefings to Parliament and republished on the PMG still bearing their “Confidential” labels.
This creates a Sword of Damocles: Once the Bill is law, will it be safe to publish information from such documents outside of Parliament? Or even inside? Does one do it courting a three to five year sentence? Is it safe to leave reports drawn from such documents online or is it wiser to remove them from the public domain? Does disclosing that the SA Army owns about 260 Olifant main battle tanks, based on information provided by a spokesman for defence minister Joe Modise in the 1990s, endanger state security in 2011? What if some official, moved by public zeal or private malice, believes the number, then not classified, is now a “secret”. What if the official additionally decides the disclosure was a “mistake”? And that the disclosure harmed state security…
Such was the fear at his command that Soviet ruler Stalin once boasted it took a very brave man not to be a hero in the Red Army. It may soon be a brave official that makes anything capable of controversy public and a braver reporter to publish it. Yet, if such heroes cannot be found, it will be the reader who will be the poorer; the faint-hearted reporter perhaps moving on to travel writing, motoring journalism and pursuits similarly non-threatening to personal liberty.
The Bill additionally criminalises the disclosure, publication and retention of “state security matters”, defined as including “any matter which is dealt with by the [SSA] or which relates to the functions of the [SSA] or to the relationship existing between any person and the Agency”, classified or not. So where does it leave reporting on intelligence matters, including the state security minister’s annual budget vote? Speaking of his budget, can one determine it from public documents and publish it without being jailed five to 10 years? (Unless one has foreign readers, which would mean 10 to 15 years…) Do we have a right to know how much of the taxpayer’s wealth is spent on intelligence? Seemingly not for much longer!
It is for this reason that many critics of the Bill have urged for a “public interest ” defence for journalists. Indeed one does not have to be a spy or engaged in “hostile activities” for some official to decide you are, to have you arrested, to harrass you, to vilify you, to question your patriotism, search your home and to seize your computer and notes. In malicious or misguided hands, this Bill will kill defence journalism.
Protection of Personal Information Bill
Cabinet approved the Protection of Personal Information Bill [B9-2010] in August 2009. The Bill, years in the making, was drafted by the South African Law Reform Commission (SALRC) and seeks to protect the constitutional right to privacy as far as the processing of personal information is concerned. Government spokesman Themba Maseko at the time said the law will help balance the right to privacy against other rights such as the right of access to information.
Once law, the legislation is meant to help protect people from criminals or unscrupulous businesses by holding companies and individuals, who fail to take adequate steps to protect other people’s private information, legally liable. In terms of the proposed law, companies, for example, will be required to notify all customers affected by security breaches that could result in identity theft. Offenders could face up to 10 years in prison, as well as fines and punitive damages. The SALRC has been intermittently working on the Draft Bill since 2000. “Currently, no other law properly deals with the protection of personal data in electronic format,” said lawyer Reinhardt Buys in 2008. “In other words, the Bill should be enacted as soon as possible. The longer the Bill’s enactment is postponed, the longer the gross violation of data privacy in SA will continue.” Buys said the Bill will end the current “Wild West” attitude towards electronic data privacy in SA, as well as the “wholesale commercialisation of personal information and databases”.
There is a “general lack of any rules or controls over the collection, use, disclosure and sale of digital personal data like e-mail addresses. The sale of databases containing personal details is rife in SA and leads to numerous abuses like SMS spam, cross-selling and the like.” There are no rules requiring the secure storage of personal data “and if such data is stolen by hackers or rogue employees the victims are left without any legal recourse”.
But the Freedom of Expression Institute (FXI) warns the Bill is “extremely complex and technical, and concerns have also been expressed that this could have a ‘chilling effect’ on the flow of information because of the uncertainty the law will create. Moore says the law will have a chilling effect on the ability of the media to inform the public. “I think that is in essence the main concern here.” Attorney Neil Kirby agreed, saying it is difficult to say how much the Bill would impede the flow of information. He avered the law could have an effect on those who were in a position to give information, by making them nervous to do so. “People rather err on the side of caution,” he said.
Protection from Harassment Bill
The Protection from Harassment Bill [B1-2010] is intended to criminalise stalking. Approved by Cabinet in April 2009 and introduced into Parliament shortly afterwards, the Bill follows a SA Law Reform Commission (SALRC) investigation that culminated in draft legislation in 2004. An SALRC report dated September 2004 said the commission “acknowledges the desperation and helplessness experienced by not being able to find adequate legal remedies to stop the stalking behaviour.” The 2004 report added jurisdictions across the globe are taking legal action against stalking behaviour, “recognising it as a public problem which merits attention”. It explained the “effects of stalking upon an individual may include behavioural, psychological and social aspects. Specific risks to the victim include a loss of personal safety, the loss of a job, sleeplessness, and a change in work or social habits.
“These effects have the potential to produce a drain on both criminal justice resources and the health care system, and it is therefore in the best interests of society to take swift action when cases are presented to them. “The Commission proposes changes to the civil and criminal law in order to provide effective legal protection to all victims of stalking by recognising that violence, in all its forms, is unacceptable behaviour.”
This is well and good, but the South African National Editors’ Forum (SANEF) has said its unintended consequences include preventing journalists from doing their job. SANEF says the definition of “harassment” is wide enough to include methods journalists use daily to obtain information in investigations. Says Raymond Louw: “In order to secure an interview with such a person (who has become the subject of a public- interest inquiry) journalists may be required to adopt conduct such as ‘following, watching, pursuing or accosting’ a person ‘or loitering outside of or near the building or place’ where a person resides, works, carries on business, studies or happens to be.” Also potentially included is telephoning media subjects for comment.
“SANEF”s concern is that though the definition qualifies the conduct by stating that it must be ‘unreasonable’, in the absence of a preamble citing freedom of the media (clause 16 of the bill of rights) as a right to be specifically respected, due cognisance of the role of the media will not be respected, and journalists may be subjected to a protection order being served on them.”
Webber Wentzel media law specialist Dario Milo agreed the harassment definition was wide enough to curtail media coverage. “A media exemption for public interest reporting is required. At the very least, the definition of ‘harassment’ should be read down in accordance with the constitutional protection of freedom of expression, so that legitimate and good- faith articles by the media are not hit.”
It’s your rights…
To conclude then: These Bills, jointly and severally, will make reporting more difficult and will result in us having less information at our disposal on which to base decisions or enforce our rights. That cannot be good for you, me, or this country.
Judge Robert Nugent, writing for a full bench of the Supreme Court of Appeal in 2007 noted that it “is important to bear in mind that the constitutional promise of a free press is not one that is made for the protection of the special interests of the press.” Writing in Midi Television (Pty) Ltd v Director of Public Prosecutions  SCA 56 (RSA) he cautioned against a special status for journalists: “As pointed out by Anthony Lewis, in a passage that was cited by Cameron J in Holomisa v Argus Newspapers Ltd: ‘Press exceptionalism – the idea that journalism has a different and superior status in the Constitution – is not only an unconvincing but a dangerous doctrine.'” He continued: “The constitutional promise is made rather to serve the interest that all citizens have in the free flow of information, which is possible only if there is a free press. To abridge the freedom of the press is to abridge the rights of all citizens and not merely the rights of the press itself.” I need say nothing more.