Concern over media freedom
Johannesburg - The protection of information bill is "constitutionally suspect", the Law Society of SA (LSSA) said on Friday.
"The bill suffers from several defects which render it constitutionally suspect and which need further consideration," the LSSA said in a statement.
The society expressed concern over the bill and the ANC-proposed Media Appeals Tribunal and their effects on media freedom.
"... Each has the potential (to) seriously erode transparency, accountability by public officials, the public's right of access to information and media freedom."
"Defects" in the bill include its "broad and vague" definition of "national interest", the threshold for classification was "unacceptably low", the bill allows for the classification of commercial information held by the State and the bill fails to provide for an "independent oversight mechanism" to review classification decisions. (It) thus leaves the final decisions in this regard in the hands of State officials who may well have an interest in continuing to conceal certain information."
Accessing, disclosing and continuing to possess classified information; communicating classified information and publishing a "State security matter" were deemed criminal offences, with a penalty of between five to 25 years in jail.
"No public interest indemnity is proposed for these criminal offences.
"The result is that the offences will inevitably censor the publication of matters of public interest by the media and others," said LSSA co-chairs Max Boqwana and Peter Horn.
'Government oversight over the media'
"Whereas the LSSA recognises the legitimate need for every government to take steps to protect information that is crucial for national security, such legislation should be narrowly tailored and should not be drafted in a manner that fails to take into account the important role played in a democracy by the media, and indeed every citizen who seeks to expose corruption, nepotism, hypocrisy and maladministration."
The society welcomed Justice Minister Jeff Radebe's assurance that the bill would be considered in a "democratic manner".
It accepted that the media had a responsibility to report fairly but expressed concern about the "suggestion" that the media required "external regulation" as suggested by the ANC's proposed tribunal.
The ANC wants an independent statutory body accountable to Parliament to deal with complaints against newspapers, instead of solely relying on the Press Ombudsman who currently deals with complaints.
"The fact that the tribunal would be accountable to Parliament is cold comfort - ultimately what this will amount to is government oversight over the media, which cannot be countenanced in a democratic state."
It appeared the purpose of the tribunal was essentially to remove self-regulation, which had been criticised on the basis that the appointment of a former journalist as the Press Ombudsman automatically led to bias in favour of the media.
This criticism was not borne out by the jurisprudence that had emanated from the Ombudsman.
The Ombudsman had issued a number of highly critical findings against the media and ordered the publication of several prominent apologies, including front page apologies.
The right of individuals to approach the court in cases of defamation was entrenched and the discussion should actually be how best to utilise this, including accessing lawyers for such acts.
"The LSSA is of the view that the concerns about lack of accountability among certain sections of the media should be addressed by an improvement on the current system of self-regulation together with strengthening of the Ombudsman's powers," Boqwana and Horn said.
The ruling party will discuss the proposal at its national general council in Durban in September.
Of further concern was the call for journalists to face jail sentences or fines for publishing inaccurate stories.
"Such a step would entirely negate the right to freedom of the media and place South Africa amongst the ranks of several autocratic states around the world where criminal sanctions are used to silence the media."
The Law Society planned to host a public discussion to debate the bill and the tribunal.
Media freedom in South Africa has recently come under the spotlight with the draft protection of information bill now before Parliament, discussions on the tribunal on the horizon and with the arrest of a Sunday Times journalist this week.