The absence of a public-interest defence clause in the Protection of Information Bill means it is destined for a Constitutional Court challenge, where critics hope it will be thrown out.
This week the ANC refused to include such a clause, which would protect anyone – including journalists and whistleblowers – who released or published classified information in the public interest.
Journalists would face stiff prison terms under the proposed law if they publish classified information without first asking the government to declassify it.
Media lawyer Dario Milo said the absence of a public-interest defence was problematic because it would have functioned as an important means for information of serious concern to citizens to be disclosed, regardless of the fact that the information was classified.
“It would have allowed a citizen-critic to blow the whistle on corruption, nepotism and so on that may be revealed in classified documents, without fear of being imprisoned for this act of patriotism.”
Milo said the exclusion of the public-interest defence “will certainly form an important part” of any constitutional challenge to the bill, which could be brought only once the bill had been signed into law.
In July the ANC proposed a clause which it said would offer “some protection” to whistleblowers.
This would be that while anyone who unlawfully disclosed classified information would be guilty of an offence and liable on conviction to imprisonment for a maximum of five years, there would be an exception where the disclosure was protected under the Protected Disclosures Act, or section 159 of the Companies Act, or authorised by any other law.
But the Protected Disclosures Act seeks only to protect an employee, whether in the private or the public sector, from being subjected to occupational censure for having made a protected disclosure.
Gabriella Razzano of the Open Democracy Advice Centre, which advises whistleblowers, said that without the public-interest defence clause, whistleblowers were not covered by any legislation.
“We requested a generalised public-interest defence to address whistleblowers’ concerns. If the bill goes through without that intervention, of course it will end up in the Constitutional Court, and we will support whoever takes it there,” said Razzano.
On Wednesday, the ANC told Parliament’s special committee processing the bill that it would not allow a public-interest defence to be written into the bill as this would place journalists in a class of their own.
Arguing against the inclusion, the ANC’s chief negotiator on the bill, Luwellyn Landers, said the bill “merely makes the media subject to the rule of law”.
He quoted Raymond Louw of the SA National Editors’ Forum (Sanef) as having opposed special exemptions for the media and as having stated that “the basic principle of journalism is that journalists had neither any extra powers nor any lesser powers than the ordinary individual” and that journalists were not in a class of their own.
However, Louw added on Thursday: “The remarks do not apply to this section of the bill. For him to quote me saying that is not right – not for this section.”
He said
Sanef would support any media company whose journalists were arrested for publishing information which was in the public interest. - Political Bureau