Another threat to journalism

As the controversial Protection of State Information Bill enters its final legislative lap, a lesser known Bill with significant implications for journalism is winding its way through Parliament.

The Protection of Personal Information Bill, in its seventh draft, is intended to give legal standing to the constitutional right to ­privacy and align data protection practices with international standards.

It was tabled before Parliament in 2009 and given immediacy by an attempt to facilitate data sharing during the World Cup – airline passenger details, for example – with the European Union, which is sticky about transmitting personal data to countries without safeguards against its abuse.

That deadline came and went, but the Bill, which is being processed by the justice portfolio committee, is now likely to become law within the year.

The Bill seeks to outlaw the processing of personal information without the consent of the subject and a raft of other conditions have to be satisfied. Personal information is very broadly defined: anything from names to telephone numbers, addresses, physical identifiers, educational, medical, criminal or financial histories and even opinions.

Instant victim
So far, so good – direct-marketing companies reined in at last. But what about saving phone numbers and the like on your cellphone or computer address book? That too would be illegal were it not for an exemption for "purely personal or household activity".

Journalism, too, would be an instant victim, because all but the sunshine variety would be impossible without information about people being gathered and disseminated without their consent. Think crime or court reporting, for example, or investigative journalism. And so, from its original version, the Bill has included a journalistic exemption.

It rightly anticipates a conflict between the competing rights to ­privacy and the genuine public interest that an overly broad protection of privacy could subvert. The current draft provides an exemption for "exclusively journalistic purposes", but only when the journalist is "by virtue of office, employment or profession" subject to a code of ethics that adequately safeguards privacy. The drafters of the Bill, one assumes, had the press code and the broadcasting code in mind, to which the mainstream print media and broadcasters subscribe.

In the event that the adequacy of such codes is disputed, the Bill laudably points to the "special importance of the public interest in freedom of expression" and proposes a comparison with domestic and international standards, weighing up the right of the public to be informed against the right to privacy.

However, these provisions may prove out of step with the rapidly changing nature of what constitutes journalism both locally and ­globally. There has been a dramatic and inevitable rise of "citizen journalists" – bloggers, home writers, amateur photographers, video journalists in townships – who are not members of a professional body and thus unable to access the protection of the press and broadcasting codes, which would result in them immediately having their work criminalised.

Hobby muckrakers
These journalists are often at the coalface of important stories. Last year, when a Zimbabwean was beaten to death in Diepsloot, the entire gruesome episode, filmed on a cellphone by Diepsloot resident and freelance journalist Golden Mtika, led to detailed investigative stories about xenophobia by the New York Times and others.

Investigative journalists rely increasingly on "hobby muckrakers" – citizens who do some informal research and pass it on to units such as the M&G Centre for Investigative Journalism (amaBhungane), who then apply full journalistic rigour, do further research and may bring the story to publication. And then there are the invaluable sources who, because of their involvement in or exposure to a situation, tip off newspapers.

These both often dovetail with the new practice of "crowdsourcing", when a newspaper invites readers online to contribute their knowledge to a story it is researching.

In every case, these contributors will, almost without fail, handle some personal information contrary to the provisions of the Bill and without the exemption that recognised journalists have.

The consequences of the Bill for online journalists, even the recognised ones, are also problematic. Online news platforms not tied to newspapers or broadcasters – the Daily Maverick comes to mind – fall into the yawning gap between the press code and the broadcasting code.

The Digital Media and Marketing Association appears to have become the regulator for such sites by default, but its code is better suited to marketing or advertising practices than news production. It bans publication that "causes grave or widespread offence", or "degrades, defames or demeans any person". Sad as it may be, such publication is often necessary in a democracy as a matter of public interest.

Unethical incursions
Without a wholesale reform of the association's code, online journalists will find themselves covered by a blanket so small it leaves them unable to fulfil their journalistic duties for fear of breaching the Bill.

An easy remedy would be to exempt the processing of personal information for exclusively journalistic purposes without prescribing that the practitioner must be subject "by virtue of office, employment or profession" to a code.

Those who object to this may cite unethical incursions into private lives by journalists, as happened recently in the United Kingdom. But whether or not the Bill defers to the press and broadcasting codes, these codes are a fact. Mainstream journalists are subject to them regardless and all journalists, even citizen journalists, are subject to general constraints such as defamation law.

Admittedly, citizen journalists will exceed the bounds of what is acceptable from time to time. But that is an ill that can be tolerated while the field is in its infancy and until new ways can be found to bring it, too, under sensible regulation.

By comparison, the Bill's current formulation of the exemption is overkill – it will outlaw citizen journalism altogether, stunting the development of journalism itself. Freedom of expression and the public's right to know in an increasingly complex and increasingly online world will have been dealt a mortal blow.

Vinayak Bhardwaj is advocacy co-ordinator and Stefaans ­Brümmer managing partner of the M&G ­Centre for Investigative Journalism (amaBhungane)

* Got a tip-off for us about this story? Email [email protected]


The M&G Centre for Investigative Journalism (amaBhungane) produced this story. All views are ours. See for our stories, activities and funding sources.

Subscribe to the M&G for R2 a month

These are unprecedented times, and the role of media to tell and record the story of South Africa as it develops is more important than ever.

The Mail & Guardian is a proud news publisher with roots stretching back 35 years, and we’ve survived right from day one thanks to the support of readers who value fiercely independent journalism that is beholden to no-one. To help us continue for another 35 future years with the same proud values, please consider taking out a subscription.

And for this weekend only, you can become a subscriber by paying just R2 a month for your first three months.

Related stories

How we braved danger to honour Fikile Ntshangase

Reporter Khaya Koko reflects on what it took — logistically and emotionally — to travel to KwaZulu-Natal and speak to the slain activist’s family and neighbours

‘Elusive Spring’ reveals South Africa today

Mike van Graan’s 2012 political thriller comes to life again ― and its themes are more relevant than ever

Mozambican authorities must stop the attack on media freedom

When journalists stop telling the truth about what’s going on in their country, when they stop exposing wrongdoing and corruption allegations, everyone suffers

Thank you for supporting our journalism

Thank you for buying our newspaper. Siyabonga, re a leboga, enkosi, dankie. You are why our newsroom can keep doing good journalism

‘Killing the chicken to scare the monkey’: what Jimmy Lai’s arrest means for Hong Kong’s independent media

Although self-censorship has long been a concern, Hong Kong has traditionally enjoyed a vibrant free press

How to report on humanitarian crises: A guide for Western journalists

The world has become a more complicated place — that doesn’t mean your reporting has to be.

Subscribers only

ANC: ‘We’re operating under conditions of anarchy’

In its latest policy documents, the ANC is self-critical and wants ‘consequence management’, yet it’s letting its members off the hook again

Q&A Sessions: ‘I think I was born way before my...

The chief executive of the Estate Agency Affairs Board and the deputy chair of the SABC board, shares her take on retrenchments at the public broadcaster and reveals why she hates horror movies

More top stories

DRC: Tshisekedi and Kabila fall out

The country’s governing coalition is under strain, which could lead to even more acrimony ahead

Editorial: Crocodile tears from the coalface

Pumping limited resources into a project that is predominantly meant to extend dirty coal energy in South Africa is not what local communities and the climate needs.

Klipgat residents left high and dry

Flushing toilets were installed in backyards in the North West, but they can’t be used because the sewage has nowhere to go

Nehawu leaders are ‘betraying us’

The accusation by a branch of the union comes after it withdrew from a parliamentary process

press releases

Loading latest Press Releases…