As the African National Congress mulls establishing a media appeals tribunal and the draft Protection of Information Bill makes its way through Parliament, a very different judgement was made in the European Court of Human Rights last week.
The court in Strasbourg ruled on September 14 that media premises were exempt from police searches, and the judgement has been hailed as a victory for press freedom in Europe.
The judgement set a ‘high benchmark for protection of journalistic materials and will force police and prosecutors across Europe, from Russia to France, to change their practices”, Geoffrey Robertson, QC, was quoted as saying on the Open Society Foundations website.
In Sanoma vs the Netherlands, the court reversed an earlier ruling and held that police could not search media premises or seize journalistic materials unless they could show it was absolutely necessary in the investigation of a serious crime, as well as obtaining a judicial warrant.
In the Sanoma case, police in Amsterdam sought to obtain photographs taken by a journalist of an illegal car race to use for a criminal investigation into another matter. When the editor refused, he was arrested and the police threatened to close down his newspaper, all without a court order.
Attorney Dario Milo of Webber Wentzel said on Thursday afternoon it was difficult to draw a comparison between the European court’s decision and the situation in South Africa, given that the draft Protection of Information Bill may not be passed.
He said that South African courts had a good track record in upholding media freedom and mentioned the example of the Western Cape High Court ordering that Parliament’s communications portfolio committee could not hold a meeting behind closed doors in August.
Milo said that in respect of Section 205 — in which a magistrate could call for someone to answer questions before him or her if it was deemed to be relevant to a case — the European judgement would hopefully be “extremely persuasive” in guiding SA courts.