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In recent weeks there has been much publicity about the Protection of Information Bill and the ANC's proposal for the establishment of a Media Appeals Tribunal and how both of these developments represent a serious threat to media freedom. Unfortunately some media reports have tended to conflate the two issues and one could be forgiven for feeling confused. What follows is a broad overview of both issues.

What is the Protection of Information Bill?

The Protection of Information Bill is a piece of draft legislation that is primarily aimed at (i) regulating the Government's powers to classify certain information (ii) determining the manner in which classified information must be dealt with and (iii) creating certain offences in relation to classified information.

The Bill sets out a classification regime in terms of which information can be classified as either, 'confidential', 'secret' or 'top secret'. It also sets out principles and procedures that guide classification decisions, de-classification, and the manner in which classified information must be dealt with by the courts.

In principle, there is a need for a law of this nature because it seeks to introduce proper regulation into the Government's classification regime, which is currently based on the Minimum Information Security Standards, a cabinet policy that in several respects is even more problematic than the Bill. The Bill will also repeal the Protection of Information Act, 1982 which is the draconian apartheid-era secrecy legislation that has remained on the statute books.

What are the problems with the Protection of Information Bill?

Unfortunately, there are several aspects of the Bill which are constitutionally suspect.

From a media and whistleblower perspective the most problematic aspect of the Bill is that it creates a number of criminal offences which relate to the disclosure of classified information but does not include a public interest defence. The practical implication of this is that if a journalist is handed classified information by a whistleblower which, for instance, exposes corruption or maladministration, the journalist would not be able to publish that information and could be jailed if he or she does, notwithstanding the clear public interest in the disclosure of the information. The whistleblower could also be jailed for leaking the information to the journalist.

The Bill also creates an offence relating to the disclosure of a 'state security matter' which is defined to include all matters (whether classified or not) that fall within the responsibilities of the state intelligence apparatus, such as the National Intelligence Agency. This vaguely defined offence could be used to prevent the media and whistleblowers from publishing any information about the activities of the intelligence agencies.

A further aspect of the Bill that is of serious concern is that several of the key definitions used in the Bill, such as 'national interest', 'national security' and 'security', are overboard and therefore open to abuse. For example, 'national interest' includes "all matter relating to the advancement of the public good". This means that there is the potential for massive over-classification of information, and hence unjustified secrecy

The classification levels set by the Bill, i.e. 'confidential', 'secret' and 'top secret', are each problematic because the threshold of harm that is set by the Bill for each classification level is too low. For example, a document will be classified as 'confidential' if its disclosure "may be harmful to the security or national interest of the Republic or could prejudice the Republic in its international relations". The words 'may' and 'could' are speculative in nature and allow for information to be classified even if it does not pose a real risk to national security (which itself needs to be narrowly defined). The net effect of this is that a document could be classified on the basis that it 'may' be harmful to what the classifier belies to be the 'advancement of the public good'.

The Bill does not make provision for the creation of an independent oversight mechanism that can review classification decisions. Although the Bill allows for members of the public to request a review of classified information in furtherance of a genuine research interest or a legitimate public interest, the final decision about whether to declassify information will rest with the head of the organ of the state concerned. The head of an organ of the state is also tasked with conducting a review of all classified information every 10 years or when there is a proposal to use that information in a court or tribunal. This is problematic because the head of an organ of state may well have an interest in ensuring that certain information is not disclosed to the public even if it has been improperly classified. There ought to be independent oversight of these tasks

What is the ANC's proposed Media Appeals Tribunal?

The Media Appeals Tribunal ("the media tribunal") is an idea that has been discussed within the ANC and its alliance partners. There is currently no draft legislation that seeks to establish the media tribunal.

The idea of establishing the media tribunal began to gather momentum in 2007 in the lead up to the Polokwane conference. This culminated in the adoption of a resolution at the conference that the government would explore the establishment of the tribunal to "strengthen, complement and support the current self regulatory institutions". The proposal was eventually put on the back burner amidst heavy protest from civil society.

In recent weeks ANC secretary general, Gwede Mantashe, the minister of higher education, Blade Nzimande, and the ANC Youth league, have made renewed calls for the establishment of a media tribunal. The ANC has also recently released a Discussion Document on Media Transformation, Ownership and Diversity which is due to be discussed at the ANC National General Council in September 2010. The Discussion Document re-iterates the need for the establishment of a media tribunal.

Based on the Discussion Document it appears that the media tribunal will take the form of a government-appointed "independent" tribunal which will serve as a forum for appealing decisions made by the Press Ombudsman and which will be accountable to Parliament.

Why has there been opposition to the Media Appeals Tribunal?

The fact that the media must report fairly and accurately and adhere to the highest standard of journalist ethics goes without saying.

The need for some form of accountability and redress for inaccurate reporting is also self-evident.

However, the media has also put into place mechanisms to address these issues in the form of the Press Code and the Press Ombudsman. The Ombudsman, the veteran and well-respected journalist Joe Thloloe, hears disputes with a representative of the public and a media representative. Appeals are heard by retired judge Ralph Zulman, also sitting with a media representative and a public representative. The Ombudsman has issued a number of judgments against the media, often requiring the publication of prominent (and sometimes front page) apologies.

Our courts also regularly entertain claims for defamation and breaches of privacy when the media oversteps lawful boundaries of reporting.

Whilst there may be a need to strengthen the office of the Press Ombudsman, the media tribunal will not properly address this issue and instead has the capacity to chill speech on public interest issues and lead to the creation of a docile and compliant media fraternity that reports only news that is approved by the Government.

Although the Discussion Document states that the ANC is committed to media freedom, it is also highly critical of the media and states, amongst other things that certain factions of the media have an "anti-transformation", anti-development and anti-ANC stance"; self regulation only serves the interests of the media; the appointment of a former journalist as the Press Ombudsman automatically leads to bias in favour of the media; the ANC's objective is to "vigorously communicate the ANC's outlook and values...versus the current mainstream media's ideological outlook"; that the media lacks integrity and that there is a serious problem of 'brown envelope journalism"; and that "freedom of expression can also be a refuge for journalist scoundrels, to hide mediocrity and glorify truly unprofessional conduct" ;

The media has expressed grave concerns about the media tribunal not least because, based on the statements made by various politicians, the Polokwane resolution and the Discussion Document, there is concern that the purpose of the media tribunal is to introduce government oversight of the media.

From the perspective of media freedom, the media tribunal is indeed a grave concern. Government oversight of the content of publications and/or sanctions and fines for journalists who the Government deems to have engaged in "irresponsible" reporting, will effectively lead to both external and self censorship and have a chilling effect on freedom of expression. A tribunal of this nature would be a serious restriction on the right to freedom of expression enshrined in section 16 of the Constitution and would represent a step backwards for accountability and transparency in Government affairs.

Written by: Dario Milo and Okyerebea Ampofo-Anti of Webber Wentzel.

This article was originally published in the Saturday Star on 7 August 2010