Media safeguard inserted in Protection from Harassment Bill


Members of Parliament have agreed to amend the final draft of a bill to prevent stalking by adding a clause that will would offer some protection to journalists. The Portfolio Committee on Justice and Constitutional Development adopted changes proposed at the last minute by ANC MP John Jeffery, who said they were intended specifically to address concerns raised by media houses.

The Sunday Times reports the final draft of the Protection from Harassment Bill [B1-2010] was then approved by all parties and will now go to the National Assembly for formal adoption. The Bill makes it possible for someone who has a reasonable fear that they are about to be harmed by a stalker or that they are being subjected to unreasonable attention to apply to a court for a protection order.

Media houses have expressed concern that the subjects of legitimate journalistic inquiry could use the proposed provision to block reporters. Media lawyer Dario Milo said the concession fell short of the ideal solution for reporters, but was an attempt to take account of concerns about freedom of information and the media. “Although it is a concession of sorts, it would have been preferable to have an exemption for journalistic inquiry in investigative reporting,” he said.

Milo said the way the justice committee had handled the Bill, including a meeting with the South African National Editors’ Forum, could set an example for other committees handling legislation that could affect press freedom. “It is a serious attempt to address media concerns and it shows the benefit of public engagement,” he said. The committee rejected the proposal for a complete exemption for reporters, but adopted a clause saying a court must take intention into account in assessing whether the conduct of a pursuer is acceptable or not.
“To my mind, that is a good attempt to address the media’s concerns. It means that the court, in deciding whether the conduct was unreasonable, must look at the purpose for which it was being conducted,” Jeffery said. Debbie Schafer, the DA member of the committee, said she was satisfied that the Bill made adequate provision for reporters to do their work. “There is no prior constraint on journalists … The test will be in how the courts interpret unreasonableness,” she said.

The ACDP’s Steve Swart, who is also on the ad hoc committee considering the Protection of Information Bill, also endorsed the final draft. “I think there is sufficient protection for journalists,” he said.

Media activists opposing this and the other two draft laws before Parliament, namely the Protection of Information Bill [B6-2010] and the Protection of Personal Information Bill [B9-2010], have quoted 1960s US President Lyndon Johnson’s caution that one does “not examine legislation in the light of the benefits it will convey if properly administered, but in the light of the wrongs it would do and the harms it would cause if improperly administered.”

The anti-stalker 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”.

In a joint ubmissionto the portfolio committee last yar Octobr, Print Media South Africa and the SA National Editors’ Forum (SANEF) said they “have become particularly alarmed at the increasing number of Bills and other instruments which contain restrictions on the media. “Although we accept that the Law Commission was acting in the public interest and that it framed its proposals in that spirit, the perception we have, as a result of the introduction of other proposed legislation such as the Films and Publications Act, the Protection of Information Bill, the new version of the National Key Points Act, the Promotion of Equality and Prevention of Unfair Discrimination Act, the Public Service Broadcasting Bill and the ICASA Amendment Bill, coupled with the closure of official departmental sources of information, police arrest of journalists on spurious charges and other harassment of journalists, hearings by parliamentary committees behind closed doors, etc, is that the State is clamping down on access to information and failing to carry out its constitutional requirement to respect, protect, promote and fulfill the freedom of expression clause in the Constitution.
“In the light of this perception, which is strengthened by the proposal of the ruling party to pursue the concept of a statutory media appeals tribunal with reported powers of imprisoning journalists and fining newspapers, is it not appropriate for the Law Commission and others engaged in drafting legislation to step back, withdraw legislation which restricts journalists and consider means of carrying out the constitutional requirement to protect and promote media freedom and freedom of expression?
“In addition to that, would it not be appropriate to consider whether those means, which could result in legislation, should be extended into some kind of advance test of proposed fresh legislation to ensure that it does not offend against the Constitution and restrict the freedom of the press to seek out and gather news and information and publish it in the public interest?”