Threatened legislation meant to discourage whistle-blowing or to punish those who release information that causes public panic is unlikely to pass muster, lawyers say. But the media has reason to be afraid of the shoot-the-messenger thinking behind the concept.
The government has promised to introduce legislation that would criminalise incitement, or the “reckless” and “impermissible” release of information, following its very public spat with non-governmental organisation Earthlife Africa. An Earthlife report pointed out high radiation levels at a site near the Pelindaba nuclear facility outside Pretoria, causing a flurry of denials from the government.
Much of the information released by Earthlife has since been corroborated – in some cases by government bodies – but the threat to outlaw a repeat has not been withdrawn.
The threatened law seems to have been a knee-jerk reaction of a stung government, and may never be drafted. If it is, legal experts say, it would almost certainly be unconstitutional, in conflict with common law, unenforceable and generally unlikely to see anyone end up in jail.
That does not mean the media can relax. By its seeming intent to shoot the messenger if it does not approve of the message, the government may foster a culture of self censorship that would affect sources of information, if not media outlets themselves.
“If such a Bill does come out we’d have to see what it looks like,” says Simon Delaney, in-house attorney at the Freedom of Expression Institute. “If it tries to nail individuals within NGOs, that would be irrefutable evidence that the government is trying to intimidate and create an atmosphere of self censorship.”
Lawyers point out that individuals who intentionally cause public panic may be criminally prosecuted for incitement, sedition, or in extreme cases even treason. These were used to great effect by the apartheid government, Delaney points out, and can still be used today. Similarly, a civil claim of defamation could be used in some cases.
That creates the sneaking suspicion that a new law may not seek to create new criminal offences, but to lower the bar when it comes to proving that an offence took place and to up the punishment. In other words, that the government wants to give itself a very big stick with a very long reach, making it easier to wallop anyone it considers in need of a walloping.
Even if such a law were not enforced, it could well mute the more vibrant areas of the broader communications arena. NGOs sometimes act as a media conduit for communities that have no other voice, Delaney says. Such communities may find NGOs rather less eager to take up the baton if individual staffers faced jail time. The same could hold true for the editors of newspaper letters pages, and for journalists as a whole.
If any law comes of the Earthlife saga it will likely be more than a year in the making, with plenty of time for a public outcry before it can be passed. Nonetheless, NGOs – including the Freedom of Expression Institute – do not intend lowering their guard.
“For now we can only raise the alarm,” Delaney says, “but we will be very vigilant in examining new legislation.”
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