If and when the Protection of Information Bill reappears on the agenda, it is important to remember that despite occasional government claims to the contrary, a public interest defense to the collection and disclosure of classified information is very much in line with foreign practice.

This is according to Brigit Rubinstein, a director in the Dispute Resolution practice at Cliffe Dekker Hofmeyr in Cape Town. She says that most states in the developing (democratic) world have laws in place that regulate the classification of information and limit the accessibility and dissemination of information in the interest of State Security.

“There is little debate that some form of similar legislation in South Africa is necessary,” she says. “However, most modern democracies that aspire towards a culture of openness and accountability place an equally high value on the free flow of information where the public interest dictates it”.

Article 3(2) of the Council of European Convention on Access to Official Documents (2009) sets out the public interest as a justification for disclosure of classified information:

"Access to information contained in an official document may be refused if its disclosure would or would be likely to harm any of the interests mentioned in paragraph 1, unless there is an overriding public interest in disclosure"

Rubinstein says the Canadian "Security of Information Act" criminalises the use of information prejudicial to State interests or security but specifically exempts anyone acting in the broader public interest.

“The UK Official Secrets Act doesn't provide for a public interest defence, but there is a general requirement that the disclosure be "damaging" to constitute a criminal offense. Where corruption or maladministration has been exposed, the State may be hard pressed to contend that the disclosure was "damaging".

Rubinstein adds, “The initial draft of the Protection of Information Bill contained a number of draconian provisions that were at odds with the Constitution and there is no doubt that significant concessions have been made. However, the Bill in its current form is still unlikely to pass constitutional muster.

“One of the main concerns with the Bill currently is that it creates a reverse onus on whistleblowers or journalists who expose corruption to prove that one of the exceptions listed applies rather than the State having to prove each element of the criminal offense. This conflicts with the constitutional right of an accused to be presumed innocent.”

FOR MORE INFORMATION:
Brigit Rubinstein, Director, Dispute Resolution practice, Cliffe Dekker Hofmeyr,
Tel: +27 (0)21 481 6308 or email: brigit.rubinstein@dlacdh.com

Andrea Collocott, Head: Marketing, Cliffe Dekker Hofmeyr,
Tel: +27 (0)11 562 1281 or email: andrea.collocott@dlacdh.com

Angela Graham, Tel: 073 505 9012 yeahwrite@worldonline.co.za

Notes:
Cliffe Dekker Hofmeyr is one of the largest commercial law firms in South Africa with some 115 directors/partners and 250 qualified lawyers located at offices in Johannesburg and Cape Town.

Cliffe Dekker Hofmeyr lawyers specialise in services covering the complete spectrum of business legal needs in 11 core areas of practice. The firm also has dedicated sector-led teams consisting of lawyers with experience in a wide range of industries and the public sector.

Cliffe Dekker Hofmeyr is the South African member firm of DLA Piper Group, an alliance of legal practices, which includes firms with offices around the globe that are affiliated to members of the DLA Piper Practice but are not themselves members of it.

Cliffe Dekker Hofmeyr's Africa practice, in conjunction with DLA Piper Africa Group, is unrivalled in terms of pan-African legal services and geographical coverage.

DLA Piper is an international legal practice with over 3,500 lawyers located in 30 countries and 69 offices throughout Asia, Europe, the Middle East and the US.

For further information, please visit www.cliffedekkerhofmeyr.com