The Protection from Harassment Bill [B1-2010] is a step closer to law as public hearings on the draft law that aims to stamp out stalking gets underway. The Bill, one of three currently before Parliament that has profound implications for the media and free speech, has been welcomed by gender rights groups but not by media activists.
The proposed law aims to provide protection to people being stalked, specifically those not covered by the Domestic Violence Act.
Eyewitness News reports gender rights groups welcomed the Bill at public hearings Tuesday, saying it will help safeguard women’s rights and privacy. But media organisations warn that in its current form the legislation would jail journalists for doing their job.
Women’s Legal Centre attorney Cherith Sanger said it was a step in the right direction, but warned there may be problems with implementation similar to those highlighted by the Domestic
Violence Act. “There’s a failure on the part of the state, and specifically I speak of the South African Police Service, around actually using and applying it.”
The Mail & Guardian notes that a routine part of journalism involves “making repeated phone calls and door-stopping people to get an interview — and an accurate story.” Should the Bill become law “those phone calls and visits could constitute stalking and harassment, punishable by imprisonment.”
Media lawyers say the Bill is not meant to target journalists, but it does put them at risk of prosecution. “The definition of harassment in the Bill is problematic,” said Simon Delaney, an attorney for the South African National Editors’ Forum (SANEF) and Print Media South Africa (PMSA), which made representations to Parliament this week on the Bill. “There is no public-interest defence in the definition so, if you need to do any digging, it means you are lumped in with the classic stalker.”
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 M&G adds he said the Bill does not distinguish between stalkers and journalists. “As a journalist working on a big corruption story, who needs to call someone a few times to get his comment, you may marginally curtail his privacy and may well be accused of harassment.”
Delaney said another problematic clause is section five of the Bill, which stipulates that court hearings may be closed to the public. “If a journalist is hurled before court for this Bill, it’s high profile. But the court can decide to close the hearing and no one will know what’s going on.” He added the Bill is not constitutionally sound. “The Bill contradicts the right to freedom of expression and the right to impart and receive ideas, which are constitutional ideas,” he says.
The South African Press Association noted Delaney added the bona fide activities of journalists should not be “lumped in” with the mala fide activities of stalkers that the bill proscribed. Similarly, marginal stalking behaviour, such as that of political canvassers, telemarketers, and door-to-door sales people, should be distinguished from the activities of journalists performing a vital public interest role in society. The risks to journalists as a result of the overbroad definition of “harassment” could be mitigated by, for example, inserting a “public interest” defence, he said. The role of the media was fundamental to any constitutional democracy and would be undermined by the Bill’s provisions, Delaney said.
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 says 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.”
In its joint submission, available on the Parliamentary Monitoring Group (PMG) website (http://www.pmg.org.za/report/20101019-public-hearings-protection-harassment-bill), they “have become particularly alarmed at the increasing number of Bills and other instruments which contain restrictions on the media in addition to those we perceive in the Protection from Harassment Bill.
“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,” the two organisations told the Portfolio Committee on Justice and Constitutional Development.
ANC MP John Jeffrey took exception to this, asking which committees were holding meetings behind closed doors and which journalists were being arrested. Jeffrey said knew of one incident [involving a Sunday Times reporter]. The PMG records he said it seemed “that there were half-truths in the submission” and that the “litany of complaints was inaccurate and false”.
He also took issue with the SANEF and PMSA complaint that they had not been consulted by the SALRC. He said there was a rigorous process preceding the Bill. “It was not true that the media was not invited during the discussion phase of the draft Bill as everybody was, as per the norm, when Bills were being drafted. The whole purpose of a discussion paper was that it was in the public domain; everybody had a chance to participate.”
Jeffrey added that it should be borne in mind that the Bill did not prohibit harassment; it provided a mechanism for people to go to court if they felt that they had been harassed and obtain a court order to stop harassment. Nobody was stopping journalists from doing their work; the Bill merely provided a mechanism for someone to obtain a court order if they felt that they were being harassed. The decision whether there was harassment or not would be decided by the courts.
Dario Milo, appearing for publishing house Avusa – owners of Business Day and the Sunday Times -added there was a potential for abuse of the law, where, for example, “a prominent public figure that was being tried for a crime could just say that they were being harassed and obtain a protection order against the media.” The in its minutes of the hearing the PMG added that Milo continued that there could be potential for news to perish if a journalist was hauled before court and barred from publishing a story via an interim protection order until the court had decided on the matter.
Jefrey said all rights were subject to balance against other rights. “For example, the right to information had to be balanced against the right to privacy. It was concerning that the submission seemed to say that it was okay for journalists to do things that law enforcement agencies could not do: to harass a person until such time the person gave in and started talking. The right to remain silent was overlooked in the submission. SANEF and PMSA seem to want to sanction a journalist harassing a person until they spoke; this was the problem with the submission. The submission was effectively requesting the legislator to waiver the right to silence from people who were being harassed by journalists.”