Jean Redpath
crossfire
The trial of those accused of Rashaad Staggie’s murder began on Monday. The state was criticised for subpoenaing journalists. The press said the subpoenas were an infringement of press freedom and would have a “chilling effect” on media ability to gather news. But is the issue that clear cut? And who is really responsible for the “chilling effect”?
The situation presents a very difficult dilemma between the interests of justice and media freedom. Some perspective can be obtained by looking at how this has been handled in the United States, Canada, the United Kingdom and Germany.
In none of these countries do journalists have an absolute privilege against testifying in a court of law. Wherever a “journalist’s privilege” exists, it is always subject to balancing by the interests of justice.
In other words, in none of these countries would an eyewitness to murder escape testifying on the grounds of press freedom alone.
Generally, a journalist’s privilege is usually in respect of protecting confidential sources. Even so, in a given case the interests of justice may trump the interest in keeping sources confidential.
Majority opinion can be quite brutal. To quote the major US Supreme Court case on this point: “Thus, we cannot seriously entertain the notion that the First Amendment protects a newsman’s agreement to conceal the criminal conduct of his source, or evidence thereof, on the theory that it is better to write about crime than to do something about it.”
Media-friendly (usually minority) judicial opinion does grant a qualified privilege to journalists: only where the evidence is relevant, there is no alternative source for it and a compelling interest of justice will be served by revealing it, must journalists reveal confidences.
In Germany the importance of protecting confidential sources is given greater weight where the matter relates to government corruption.
Journalists are also not immune from having relevant evidence such as photographs or videotapes being searched for and seized.
Media-friendly dissenting judges give journalists a qualified privilege: only where there is no alternative source for the evidence, the importance of the evidence in the interests of justice is high and the inconvenience to the press minimal, should the search-and-seizure be permitted. Majority opinions lay down fewer requirements for valid seizures.
Courts also weigh into the equation whether the material, or a portion of it, has already been published and is therefore in the public domain. If it has been published, there is less reason to protect the material from seizure.
It is interesting to note a comment in the majority judgement in a Canadian Supreme Court case (in which the media had filmed a building being vandalised by demonstrators): “It must be remembered that all members of the community have an interest in seeing that crimes are investigated and prosecuted.
“In a situation such as this, the media might even consider voluntarily delivering their videotapes to the police. For example, if the tapes depicted a murder being committed and means of identifying the killer, would the media seek to withhold the tapes on the grounds that to release them would have a chilling effect on their sources and thus interfere with freedom of the press? I trust that such a position would not be taken.”
This is the position that was taken here. Cameramen and photographers filmed Staggie’s murder, published portions of the material and refused both to hand the material over to the state and to testify in court on the grounds of press freedom. The state eventually obtained copies of this material, but only after various search and seizures were conducted.
OK, so the state got tough and seized the film. Why, you may ask, couldn’t it then just leave the media people alone and let the tapes speak for themselves?
Unfortunately, in a court of law, a video or photograph on its own does not have much weight. There needs to be corroborating evidence. Preferably, the person who filmed the material should testify that it is a true reflection of events and has not been tampered with.
Alternatively, another eyewitness to the event can confirm it as a true record, according to his memory. Yes, police were at the murder scene, but they were caught up in other duties. None saw the actual shot being fired. The civilians present were all members of People against Gangsterism and Drugs (Pagad). What is the state to do?
The state needed the cameramen or photographers to confirm that the material reflects what happened and that it has not been tampered with.
The state offered many ways of getting this testimony, right down to obtaining an affidavit from the persons concerned and not requiring actual testimony in court. “Cooperation” of any sort was refused.
This probably has to do with the fact that just prior to this matter first being heard, Pagad faxed a statement to the press saying they regarded the attempt to get journalists to testify as an infringement of press freedom.
If there was indeed any “cooperation” by the media, the media would “no longer be welcome” in their midst, they said.
We must therefore ask who is threatening press freedom. Is it the state, by asking journalists to confirm material already in the public domain? Is this an issue of press freedom, or one of witness intimidation?
And finally, are we sure that society’s interest in retaining press access to Pagad is more important than society’s interest in securing the evidence necessary to bring the perpetrators of murder to justice?
Jean Redpath is a researcher at the Institute for Human Rights and Criminal Justice Studies at Technikon SA