Media bill takes aim at truth

2012-03-31 10:51

In the midst of ongoing speculation over what will come of the next round of deliberations on the Protection of State Information Bill, let us assume momentarily that the bill – despite its fatal flaws – is passed in its current form.

The bill is currently before the ad hoc committee of the National Council of Provinces (NCOP).

This means that a document containing state information deemed to warrant classification may be classified as confidential, secret or top-secret, which then triggers a number of possible criminal offences – 14 in total – against a person who comes into contact with this classified document.

This will inevitably cut down democratic deliberation by whistleblowers, journalists, editors and community organisations, but most fundamentally it will affect the public’s right to know.

In the absence of both a public interest and a public domain defence, an invidious choice will have to be made between opting not to publish a story or publishing it withthe risk of facing harsh criminal sanctions.

In this regard, it matters not whether the document has been wrongly classified – whether
as a result of the classifier’s inadvertent, negligent or intentional conduct.

The mere possession and disclosure of it gives rise to criminal liability.

At a minimum, the publication of any classified document could lead to a conviction – maximum five years’ imprisonment or a fine – for disclosing or failing to report possession of the classified document – a further five years’ imprisonment or a fine.

Reports in which there has been clear public interest, such as the top-secret Browse Mole report by the disbanded crime intelligence unit Scorpions or the more recent report on nepotism in the Crime Intelligence Agency, may well have been withheld from publication for fear of facing a possible prison sentence had the bill been in force.

Indeed, it is instructive to consider the classic example of the top-secret Pentagon Papers, released to the New York Times and Washington Post in 1971.

There was clear public interest in the report: it revealed the deliberate expansion of attacks by the US in Vietnam and the systematic lies that four presidential administrations had fed to the public and Congress regarding the war.

However, if our bill had been in force in the US at the time, it would be a brave editor who would have risked publication given that this could potentially have resulted in the following criminal sanctions:

» Minimum 15 to maximum 25 years’ imprisonment for the offence of espionage by a person who knows or ought reasonably to have known that the information would directly or indirectly benefit a foreign state;

» Maximum 25 years’ imprisonment for receiving information that one knows or ought reasonably to have known would directly or indirectly benefit a foreign state;

» Maximum 10 years’ imprisonment for harbouring or concealing a person (such as a confidential source);

» Maximum five years’ imprisonment or a fine for disclosing classified information; and

» Maximum five years’ imprisonment or a fine for failing to report possession of classified information.

A greater chilling effect to publication can hardly be imagined, and this in circumstances where on the facts of the case, Justice Brennan of the US Supreme Court noted that: “The only effective restraint upon executive policy and power in the areas of national defence and international affairs may lie in an enlightened citizenry – in an informed and critical public opinion which alone can here protect the values of democratic government. For this reason, it is perhaps here that a press that is alert, aware and free most vitally serves the basic purpose of the law.”

The effect of the bill is even more alarming when one considers that it also does not allow any reprieve for classified information already available in the public domain.

The publication by WikiLeaks of the five cables dealing with South Africa is a prime example. Despite these cables being freely available online, any South African (such as a news agency) re-publishing the story would be liable to at least a possible five years’ imprisonment for committing the offence of disclosure.

So in the absence of a public domain defence in this context, the bill would countenance a scenario in which the South African media is compelled to remain silent on this issue despite the information being freely accessible online and in the international press.

Proponents of the bill say the public should take comfort in the mechanisms in place to have a document de-classified on application under the appropriate circumstances.

Such a request can be made to the relevant organ of state with an appeal to the minister if the request is denied. Thereafter, an application to court can be made as a last resort.

If the requested document reveals evidence of a substantial contravention or failure to comply with the law, or an imminent and serious public safety or environmental risk (and the public interest in disclosure clearly outweighs the harm), the document must be de-classified and released to whomever is making the request.

However, if the road to accessing the Khampepe-Moseneke report under the Promotion of Access to Information Act is anything to go by, this procedure falls far short of offering effective relief.

The report concerning the 2002 Zimbabwe elections was requested by the Mail & Guardian newspaper in 2008.

Having been refused and with the subsequent internal appeal unsuccessful, the matter then proceeded from the North Gauteng High Court to the Supreme Court of Appeal and to the Constitutional Court.

In November, the Constitutional Court ordered that the matter be sent back to the high court for a judge to take a “judicial peek” at the report before deciding.

Thus, more than three years after the Mail & Guardian began its legal journey, it is still not clear whether access to this report will be granted, and if so, when.

There is a final opportunity for the legislature at the NCOP to remedy these and other defects that the bill contains. There can be no doubt that our democracy will suffer if our parliamentarians don’t seize this opportunity.

» Milo is a partner and Singh is a candidate attorney at Webber Wentzel attorneys

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