One of the battles against the apartheid state was fought by certain sections of the local media bent on exposing the situation in the townships and jail cells. The government of the time implemented various measures to counter this threat, one being the Official Secrets Act (16 of 1956), which declared the dissemination of information critical of the government a threat to national security. The Protection of Information Act (84 of 1982) (PIA) subsequently replaced this Act, but the controversial nature of the legislation remains, despite the democratic transformation following the 1994 elections.
The PIA deals with the receipt and disclosure of information that the state considers sensitive. In the broadest terms, the PIA serves to restrict access to any “prohibited place” and to regulate the receipt and/or disclosure of material prejudicial to state security. While there may be a need to protect certain information and places from the public, the question remains as to why a country with a new constitution that promotes openness and transparency should retain such draconian legislation.
In addition to the above, there are also the following problems with the Act: The language of the PIA is in parts so vague and broad that it becomes difficult to determine precisely what is and what is not offending material (in particular the Act is ambiguous as to the differences between information that should not be disclosed due to its national security significance and other information held by public officials); The receipt of information may be as serious a crime as its unauthorised disclosure (an especially difficult one for journalists who receive anonymous tips or editors who are informed by their journalists); The penalties imposed by the PIA are extremely severe.
While these problematic areas may create the impression that the Act is in place to protect the government of the day rather than the real security of the nation, all is not lost. We have come a long way since 1982 and there is legislation in place which counters this Act, most notably the Protected Disclosures Act (26 of 2000)(PDA), the Promotion of Access to Information Act (2 of 2000)(AIA) and the freedom of expression and access to information provisions contained in the constitution (108 of 1996). The problem is that there may be gaps and contradictions between the PDA, AIA and the full protection granted in the constitution.
There is little doubt that the protection offered to informants and whistle-blowers is welcomed as a major step towards the protection of civil liberties. However, many are still waiting to see how the dice will fall in the interpretation and application of the law when it comes to the following: Disclosures made by public and former public officials; Information held by private bodies (including the distinction between private and government organisations and their employees); The scope of public interest; The severity of sanctions in the event of a breach; The potential for political abuse of the PIA; and The operation of the limitations clause of the constitution. In fact, the South African Law Commission is currently investigating the PDA and will make suggestions to attempt to clarify the problem areas in the legislation.
The important question is how all this impacts on the media’s ability to further the growth of democracy and be a true mechanism of balance between state security and democracy. No doubt the situation at present is so confusing that, when confronted with a piece of sensitive information, a journalist/editor should tread carefully. Hopefully in the future the courts and especially the Constitutional Court will clarify this issue.
Greg Hamburger is a candidate attorney with Rosin Wright Rosengarten, a firm of attorneys specialising in entertainment and media law based in Johannesburg.