FXI calls for review of disclosure laws

The FXI intends urgently asking the Law Reform Commission to review laws compelling journalists to disclose confidential sources.

“The interests of the effective administration of justice and maintenance of law and order compete with the right to freedom of expression,” the Freedom of Expression Institute (FXI) said in a
statement on Friday.

It was commenting after e.tv journalists were subpoenaed to reveal the sources of a broadcast showing self-confessed criminals threatening to rob and murder tourists during the Soccer World Cup.

The incident had demonstrated the urgent need for clear legislation to clarify otherwise vague and untested common law principles and constitutional concepts, said FXI acting executive director Melissa Moore.

The question was whether the public interest in compelling a journalist to reveal a source or confidential information outweighed the public interest in the free flow of information.

“This balancing test is left to judicial discretion which is wholly insufficient when adjudicating upon a matter which could potentially have a catastrophic impact upon the foundations of our
democracy,” she said.

“Freedom of expression lies at the heart of our democracy and it is the media’s role to give effect to this right by acting as the ‘public’s watchdog’ and gathering information which is of public interest for dissemination to the public at large.

“The protection of this information is essential for the proper and effective functioning of the media.

“Lack of the necessary protection of journalists’ sources has a chilling effect on the right to freedom of expression in that it stifles the dissemination of information to the public.

“The confidence that the public has in the media is undermined as journalists will inevitably be regarded as informants for the police and/or authorities.”

Moore said there was also a real possibility of journalists being placed in physical danger if forced to reveal this kind of information.

She said people who failed to obey subpoenas to appear in court or who failed to give the information requested could be jailed for up to five years unless they had “just excuse”.

“‘Just excuse’ would in, our view, include invoking the protection of ... the Constitution on grounds that compelling a journalist to provide such information or to reveal his or her source would constitute an unjustified and unreasonable limitation
on media freedom and the public’s right to receive information.”

Whether this was justified depended on the facts of the case and was at the sole discretion of the presiding judicial officer, which constituted “a proper Sword of Damocles over journalists’ heads”,
she said.

“This nurtures an environment where information which is of manifest public interest is hidden from public scrutiny.
It does, however, acknowledge the fact that the right to freedom of expression is not absolute and may be limited in certain circumstances.”

Moore said the lack of clarity regarding the circumstances in which disclosure can be compelled was highly problematic.

“Disclosure should only be compelled in instances where a real, imminent and serious harm to a right shall ensue,” she said.

Moore pointed out that it was not the media’s role to
investigate crime and that journalists should not be the police’s first port of call in conducting investigations.

“Condoning the actions of the authorities in hounding e.tv without first attempting to investigate the matter themselves, and accusing the broadcaster of harbouring criminals sets a very bad
precedent not only for future cooperation between the authorities and the media, but also for the state of media freedom in South Africa.

“It is an extremely unfortunate demonstration of the
unwillingness of the authorities to acknowledge civil liberties,” she said, adding that the recent arrest of one of the alleged ‘criminals’ was evidence that the subpoenas were “at best premature and at worst wholly inappropriate”.

She said the FXI would be asking the Law Reform Commission to review Section 205 of the Criminal Procedure Act and the introduction of a shield law to clarify the legal landscape and the roles and duties of the media and the authorities. - Sapa

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