Two impending court dates related to the Mail & Guardian‘s Oilgate exposé, which revealed that Imvume Management diverted R11-million in public funds to the African National Congress, are set to severely test the rights of South African journalists to protect confidential sources of information.
The first court date, believed to be scheduled for next week, will see Mail & Guardian Online majority shareholder M-Web contesting a subpoena served upon it in terms of section 205 of the Criminal Procedure Act.
A copy of the subpoena in eMedia’s possession confirms that a contempt of court charge has been brought by the state against the Mail & Guardian.
The state alleges that the newspaper, after being issued with a “gag order” in late May, did not remove parts of a bank statement from its website indicating an R11-million payment to the ANC. The subpoena calls upon M-Web to “give material or relevant information” on the alleged offence.
In its statement following the issuing of the section 205 subpoena, the Freedom of Expression Institute (FXI) declared: “[T]he priority being given to the investigation, coupled with the fact that the commercial branch of the police is involved…strongly suggests that the objective of the case is not simply to prove contempt of court. Rather the intention seems to be to uncover the original source of the bank statement.”
According to chief executive of M&G Media, Trevor Ncube, the subpoena raises two issues. The first, he says, is protection of sources, a “sacred cow as far as journalists are concerned”. The second is the much-maligned section 205 itself. “In a democracy such as ours, that Act has no place. This old apartheid law must be removed. There should be other ways that the state can proceed with obtaining information.”
Another aspect of the subpoena that could have negative consequences for media freedom is the demand that M-Web should make available “connection logs to the [Mail & Guardian Online] website for the period 26 May 2005 to 7 June 2005.” The clause effectively means that anyone who accessed the disputed information on the website during that time could have their transaction-related information disclosed to police.
“The implications of this demand are sinister…it opens up the question of whether the police intend to investigate the individuals who used the website,” says FXI executive director Jane Duncan. “I think we have only started to scratch the surface of the implications of this subpoena for media freedom and the right to privacy of media users, including internet users.”
A second court date involves a civil action brought against the Mail & Guardian in July, where Imvume Management is seeking an order from the Johannesburg High Court forcing the newspaper to disclose its sources. According to an article recently published in the Mail & Guardian the hearing could have taken place this month, but eMedia is led to believe that a linked legal dispute will delay the final date.
Connected to the civil matter, a battle is currently under way regarding the application of FXI, the South African National Editors Forum (Sanef), the South African branch of the Media Institute of Southern Africa (Misa) and the Media Workers Association of South Africa (Mwasa) to act as amicus curiae (friends of the court). The organisations intend to present international comparative legal research to back up the fact that source protection, as an instance of freedom of expression, should be recognised in South African law.
“Imvume has rejected our request for amicus status on the basis that — as they claim – we are working ‘hand in glove’ with the M&G and that we will therefore bring nothing new to the case,” says Duncan. “We have therefore just applied to the High Court for recognition as amici and this matter will be heard in a few weeks time. Papers to this effect were served on Imvume on Friday [September 30].”
Deputy chairperson of Misa-SA Raymond Louw argues that the civil hearing could ultimately have the same consequences as a criminal case for the Mail & Guardian. “The worrying thing is that because the outcome could be a refusal to disclose sources, they could be held in contempt of court and face a jail sentence.”
Louw continues: “It is a horrifying new dimension this company [Imvume] has alighted on. It holds dangers to all journalists who would be subject to actions of this kind…There is a binding contract between journalists and sources on confidentiality. If journalists had to disclose sources, they would be regarded as an extension of the information-gathering processes of the police, as ‘copper’s narcs’. Newspapers would then be hamstrung and unable to do their jobs.”
Ncube confirms that the Mail & Guardian will not be revealing confidential information. “As a publisher I could easily walk away and put my money somewhere else. But we can’t run away from this fight.
“My journalists need my support. We are not in the business of disclosing sources.” – This report Â