Harassment bill 'may undermine media'

2010-10-19 17:23
Cape Town - The protection from harassment bill is likely to infringe not only on the rights of the media, but also the rights of citizens, Sanef and PMSA said on Tuesday.

This emerged in a presentation to Parliament's justice and constitutional development portfolio committee by the SA National Editors Forum (Sanef) and Print Media SA's (PMSA) legal representative, Simon Delaney, of Eversheds.

Delaney said the bill should be welcomed as an improvement on the legal protection available to stalking victims.

It appeared to target the gap in the law that left stalking victims not in a domestic relationship with the perpetrator - who would otherwise be protected by the Domestic Violence Act - unprotected.

Notwithstanding the bill's benefits, it was also necessary to consider at what cost to media freedom the changes were achieved.

Unintended consequences

In general terms, the bill might have unintended consequences likely to affect the media in carrying out its vital role as the "eyes and ears of society", Delaney said.

The broad definition of "harassment" put journalists engaged in legitimate news gathering activities at risk of arrest or imprisonment.

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 broad definition of "harassment" could be mitigated by, for example, inserting a "public interest" defence, he said.

The bill's preamble took cognisance of the constitutional rights to equality, privacy, dignity, freedom and security of the person, and the rights of children to have their best interests considered to be of paramount importance.

Balancing of rights

It was noteworthy, therefore, that there was no reference to the right to freedom of expression, including freedom of the press and other media and the freedom to receive or impart information or ideas.

This was a curious oversight, given that the prohibition on harassment, which formed the cornerstone of the bill, was a limitation per se of the freedom to impart information, at least with regard to harassment by communication.

This suggested the drafters had not engaged in the necessary "balancing of rights" exercise and limitations clause analysis with respect to the bill's impact on the right to freedom of expression, he said.

The preamble should be amended to make reference to the right to freedom of expression, particularly the freedom of the press and other media, and the freedom to receive or impart information or ideas.

Given the impact the bill was anticipated to have on the activities of journalists under threat of protection orders and criminal prosecution, the bill was likely to infringe on not only the rights of the media to investigate matters with a view to imparting information, but also the rights of citizens to receive information regarding the institutions that governed them.

The role of the media was fundamental to any constitutional democracy and would be undermined by the bill's provisions, Delaney said.

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