If a new Bill aimed at preventing stalking is passed, journalists' phone calls and visits could constitute stalking and harassment.
Making repeated phone calls and door-stopping people to get an interview—and an accurate story—is part of a journalist’s day. But if a new Bill aimed at preventing stalking is passed, those phone calls and visits could constitute stalking and harassment, punishable by imprisonment.
Experts say the Protection from Harassment Bill before Parliament is not meant to target journalists, but it does put them at risk of prosecution.
“The definition of harassment in the Bill is problematic,” says 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.”
He says 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.”
On Wednesday the parliamentary committee heard submissions on the Bill from Sanef, PMSA, Avusa and the Freedom of Expression Institute.
Delaney says 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.”
Delaney says that 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.
No malicious attempt to clamp sown on the media
According to Raymond Louw, Sanef’s deputy media freedom chairperson, the fact that the media will be at risk is not a malicious attempt to clamp down on them further. Rather, the media were simply not considered in the drafting of the Bill.
Sanef’s submission noted that there were “no media representatives among the list of respondents consulted” and that the media are “prejudiced by having a little over a month to comment on the Bill”.
But Tlali Tlali, the spokesperson for the department of justice and constitutional development, said on Thursday: “In our view the Bill enjoys tremendous support, including from the media fraternity. We are, however, aware that there are certain areas around which organised media made submissions for us to consider certain aspects of the Bill. They are not major areas and their submissions will be considered by the portfolio committee. But on the whole, the media supports the Bill.”
Louw says that the Bill has been drafted because of the growing tendency globally to protect privacy, and notes that similar legislation has been drafted in Britain. The Bill was drafted by the South African Law Reform Commission, following workshops and discussion papers.
The issue paper drawn up by the commission notes that “despite the fact that there is no statutory definition of stalking in South Africa, newspapers abound with stories about stalking”.
These reports clearly indicate that stalking is prevalent in the South African context.
“The object of this form of legislation is to reduce and prevent violence in inter-personal relationships [real or imagined] by recognising that violence, in all its forms, is unacceptable behaviour, and ensuring that there is effective legal protection for victims of stalking.”