The 1992 Interception and Monitoring Prohibition Act allows a judge, in response to a formal application to the court, to direct that a particular communication may be monitored and/or intercepted. Such a direction will only be granted if the judge is convinced that an actual or impending serious offence cannot be investigated in any other way, or that the security of the state is threatened.
Because the requirements for a judge to grant such a direction are very stringent, it seems unlikely that they could ever be satisfied by an approach by the media. Furthermore, the Act prohibits any person involved in the interception and monitoring from disclosing any information obtained thereby, unless required to do so for the performance of his or her functions in terms of the Act, in terms of some other law, or for
evidence in court in relation to the investigation of a criminal matter.
Thus, a gag is placed on all information obtained in terms of such a direction and the state may not divulge such information to the media.
The legislation is clearly aimed at preventing human rights abuses. But if one considers the recent bombings in Soweto and the associated allegations of involvement by right-wing extremists and alleged plots to overthrow the government, some attempt must be made by the state to investigate this type of matter. Although it is possible that permission has been granted to the police to tap the telephone lines of individuals suspected of involvement, it is doubtful that similar permission would have been granted to a journalist.
Arguably, this is unconstitutional on the basis that it violates the media’s right to freedom of expression, which includes the freedom of the press and other media and the freedom to receive or impart ideas. This right, as has been repeatedly acknowledged by the constitutional court, is integral to any democratic society. Yet the constitution also grants everyone the right to privacy and the right to human dignity, both of which are infringed by the interception and monitoring of communications.
The contradiction between the right to privacy and dignity and the right to freedom of expression is inherent to our constitution and results in the courts having to perform a balancing act. The balance must be assessed in the light of the circumstances of each case. In some instances freedom of expression will trump privacy and dignity, resulting in a legal justification for the unauthorised interception and/or monitoring of a communication by the media.
It seems that if the media can show that the unauthorised interception and/or monitoring of a communication is reasonable in the circumstances, it may be legally permissible even though no provision is made for such a situation in the Act. Because factors used to assess whether this standard has been met are high (they include the nature of the information obtained and the manner in which the monitoring and/or interception occurs), there appear to be very few instances in which it could be achieved.
Consequently, the media is not permitted to routinely tap telephone calls without permission of the parties involved. It will be interesting to see how this area of the law develops as our courts continue to interpret the constitution and as our history of human rights abuses recedes into the past.
Toni Erling is a candidate attorney with Rosin Wright Rosengarten, a firm of attorneys specialising in entertainment and media law based in Johannesburg.