There are ways to fix the Information Bill

2010-09-18 13:41

It has not been a good year for media freedom.

A few weeks ago, an ANC discussion document was ­released, proposing a media appeals tribunal to regulate the print media.

Then journalist Mzilikazi wa Afrika was arrested, apparently for possession of a ­document which had been forged by others.

The charges were finally withdrawn last week.

But the major current threat to media freedom materialised in July – just as the country was celebrating a successful World Cup – when the Protection of Information Bill was presented to Parliament.

Since then, hardly a day has gone by without some organisation or another arguing against the bill and others, including the chief state law advisor, defending it.

Minister for State Security ­Siyabonga Cwele has announced that he has studied the ­parliamentary submissions and met with the ­committee on Friday.

It is worthwhile revisiting here the submissions of Print Media South Africa (PMSA), an umbrella body that represents the interests of more than 700 magazines and ­newspapers.

PMSA submitted an edited draft of the bill to Parliament in July which would have cured the bill’s main constitutional defects.

PMSA focused its submissions on four specific areas:

» The use of overly broad ­definitions of “national interest”, “security”, “national security” and “state security”;

» The classification of commercial information held by the state and the ability to classify such information not held by the state;

» The classification of information as “top secret”, “secret” and “confidential” on the basis of speculative or hypothetical harm to the ­“national interest”; and

» The criminalisation of certain ­activities which would squarely undermine investigative journalism.

PMSA does not argue that a law that regulates state secrets is not necessary, nor that protecting ­certain state information is not a valid government objective.

Such legislation is indeed necessary to protect information which genuinely harms national security. But the current bill goes much ­further and is clearly not a narrowly tailored response to the problem of national security information.

The main problem lies at the core of the bill: the test which classifiers – being heads of organs of state or their delegates – will employ to ­classify information.

At present, the threshold for ­classification is set far too low. For instance, a classifier may classify information that may be harmful to the security or national interest of the state.

Three problems immediately present themselves:

Firstly, the harm threshold that is required is ­speculative.

Secondly, the definition of ­“security” is so broad as to be meaningless.

Literally, it means “to be protected against danger, loss or harm, and is a condition that results from the establishment and ­maintenance of protective ­measures that ensure a state of ­inviolability from hostile acts”.

Thirdly, and for similar reasons, the definition of “national interest” is wholly unworkable and ­impractical as it includes an explanation as such: “All matters relating to the advancement of the ­public good; the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound ­international relations; and security from all forms of crime.”

PMSA’s edited bill would cure these defects: classification ought only to take place if demonstrable harm is reasonably expected to ­occur to a narrowly defined ­concept of “national security”.

So the existing definitions of ­“national interest”, “state security” and “state security matter” should be replaced within a single concept of “national security”, which may be defined narrowly as the protection of the republic’s existence, its ­territorial integrity, its capacity to ­respond to a threat or the use of force including terrorism and ­espionage, and its responsibilities to foreign states.

The threshold for classifying ­information which harms national security would also be heightened under this suggested regime to ­ensure that classifiers apply their minds to the probable consequences of the information being made public.

Heightened thresholds are consistent with the thresholds for the protection of state security and defence-related information in the Promotion of Access to ­Information Act (PAIA).

In addition, these thresholds ­approximate those employed in the United States, New Zealand and the United Kingdom, and are endorsed by the African Commission on Human and People’s Rights’ declaration on the principles of freedom of expression in Africa.

As regards commercial information, PMSA submits that the PAIA already allows commercial entities to protect confidential information, as does the common law of contract and delict.

The regulation of commercial information should be left to these existing laws as there is no place for such protection in a bill designed to protect national security.

Then there are the criminal ­offences which require no stretch of the imagination to capture within their broad ambit investigative journalists and whistleblowers.

For instance, there is an offence that criminalises possession of classified information and can lead to five years’ imprisonment.

Another offence provides that if a person discloses classified ­information they may be ­imprisoned for up to five years.

Much of the harm caused by the criminal provisions of the bill can be cured by incorporating two ­defences.

The first is that if a person ­discloses or possesses classified information that is in the public ­interest to disclose, that person is not guilty of an offence.

This means, for example, that if a journalist is given a confidential document that discloses criminality, corruption or gross mismanagement, the journalist may invoke the public interest defence to escape a jail sentence.

PMSA has attempted a definition of public interest for this purpose, including where a person discloses information that shows a criminal offence that has been or is about to be committed; that a risk to public safety exists; that a miscarriage of justice has occurred or is likely to occur; or that an undue advantage is being given to someone in a ­public bidding process.

The second necessary defence is that if certain classified information is published or is placed in the public domain, a person who ­discloses the information again (not being the original discloser of the information) ought not to be ­liable.

PMSA, along with so many other organisations including the Law Society of the Northern Provinces and the General Council of the Bar, believes that the Protection of ­Information Bill in its current form is unconstitutional.

Its edited bill will go much of the way to curing the constitutional problems that the bill faces.

The bill represents a moment in our democracy when the legislature can lead the way in showing how a transparent and open democracy regulates state secrets in a way that at once recognises that the principle is maximum openness and minimum, exceptional secrecy; and also promotes investigative journalism and whistleblowing to the ultimate good of our democracy.

» ?Milo is a partner and Wild a candidate ­attorney at Webber Wentzel Attorneys.

The firm represented PMSA at the ­parliamentary hearings.

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