Writing in this newspaper at the end of January, one of the present authors predicted that “South Africa faces a challenging year as far as media freedom is concerned”.
And a challenging year it has certainly been: Parliament is debating the Protection of Information Bill that would, in its present form, result in the censorship of political speech; the African National Congress has resolved to urge Parliament to investigate the feasibility of a media appeals tribunal; and Mzilikazi wa Afrika, a journalist employed by the Sunday Times, was arrested, apparently without any basis, for allegedly possessing a forged document within the scope of his work.
Against this background, it is interesting to note the victory for media freedom a few weeks ago in the European Court for Human Rights. In Sanoma Uitgevers v The Netherlands the court ruled that an order for a magazine to surrender journalistic material, which contained information capable of revealing sources, was an interference with the right to freedom of expression.
The facts were that journalists employed by the Dutch publication Autoweek were invited to an illegal street race on the outskirts of a town in the Netherlands on condition that the identities of all participants were kept confidential. The journalists took photographs of the event that were stored on a compact disk. It later came to the attention of the police that one of the cars taking part in this race was used as a getaway car in a violent crime.
The police demanded the surrender of the photographs, which the newspaper refused. Two policemen arrived at the offices of Autoweek that same day and served a summons against the editor that had been issued by the Amsterdam public prosecutor. The editor stuck to his guns and refused to release the CD. He was arrested and the authorities threatened to seal and search the premises.
Meanwhile, the CD had been given to the magazine’s lawyers. By agreement between the lawyers and the prosecutors, the investigating judge on duty at the Amsterdam regional court was contacted by telephone. The judge said that he did not have the authority to rule on the matter, but expressed the view that the needs of the criminal investigation outweighed Autoweek‘s journalistic privilege. The lawyers then handed the CD to the prosecutors, under protest. Autoweek began legal proceedings to order the police to return the CD and interdict them from using any information on it.
The case ultimately reached the Grand Chamber of the European Court. The court reiterated its well-known jurisprudence that the right of journalists to protect their sources is a “cornerstone of freedom of the press, without which sources may be deterred from assisting the press in informing the public on matters of public concern” and that “a compulsory handover of research material [by the press] might have a chilling effect on the exercise of journalistic freedom of expression”.
Forcing the journalists to disclose material that was capable of identifying sources was a clear interference with the right to freedom of expression. Orders to disclose sources have a detrimental impact on the source concerned, the publication against which the order is made (its reputation may be negatively affected in the eyes of future potential sources) and members of the public, who have an interest in receiving information imparted by anonymous sources.
Furthermore, even the threat to search the magazine’s offices created a chilling effect: it would have been closed down for a significant time, interfering with the publication of news, “a perishable commodity”.
The court further held that interference with the magazine’s rights was not “prescribed by law”, which is one of the requirements for interferences to be justifiable. In that regard the court held it imperative that there be the safeguard of a review by a judge or other independent decision-maker before an order to compel disclosure is made. In the Netherlands these decisions had been left to prosecutors rather than judges, but they “can hardly be seen as objective so as to make the necessary assessment of the competing interests”. On the facts here, the duty the investigating judge was called on to exercise was an advisory role and had no legal authority.
In South Africa the problem of independent oversight does not arise. Typically, as happened with e.tv earlier this year, journalists and editors would be subpoenaed to give evidence (including the identity of sources) under section 205 of the Criminal Procedure Act and there would be the opportunity to argue that it would constitute a “just excuse” to refuse to disclose the information. But there has not yet been an authoritative statement since our Constitution came into force that a journalist’s sources ought, as a matter of principle, to be protected and a journalist ordered to disclose such information only in compelling circumstances.
The closest our courts have come to such a position has been the high court decision of South African Broadcasting Corporation v Avusa Limited, in which Judge Nigel Willis accepted (albeit in passing) that the “protection of journalists’ sources is — fundamental to the protection of press freedom”. When the right to protect sources is ultimately ventilated before our courts, there can be no doubt that the jurisprudence of the European Court will be of persuasive value.
Dario Milo is a partner and Luke Choate a candidate attorney at Webber Wentzel attorneys.