November 21, 2011 | By Trevor Timm and Jillian York

South African Bill Poses Grave Threat to Press Freedom

“The [South African] media enjoys probably greater freedom than any other country in Africa and is seen by some as an unofficial opposition.” ~ Guardian, November 21, 2011

Today, the South African parliament is expected to pass one of the most draconian secrecy bills in world. Known as the “Protection of Information bill” [PDF], its main purpose seems to be protecting government officials from scrutiny while preventing the public from accessing important information.

The bill would challenge Section 32 of the South African constitution, which guarantees citizens the right of access to “any information held by the state” as well as “any information that is held by another person and that is required for the exercise or protection of any rights” and furthermore decrees that “national legislation must be enacted to give effect to this right, and may provide for reasonable measures to alleviate the administrative and financial burden on the state.”

The Committee to Protect Journalists calls the bill “reminiscent of apartheid-era regulations since it would virtually shield the government from the scrutiny of the independent press and criminalize activities essential to investigative journalism, a vital public service.”

And for good reason: It gives the government virtually unlimited authority to classify as secret any information they wish. They are not required to give any explanation and the process is not overseen by a court. The law institutes harsh punishments on not only government officials who leak this information, but also private citizens--bloggers, newspapers, television stations--who decide to publish the information. The burden would be placed on journalists to have information declassified, but given the nature of classified information, the bill will effectively make proving that such information is in the “public interest” inherently impossible.

No public interest exception exists for journalists who publish classified information not authorized for release, meaning a journalist could potentially be thrown in jail for decades for publishing evidence of crimes that would normally send government officials to jail.

Protests are scheduled to take place throughout the country today, dubbed “Black Tuesday” in reference to a crackdown orchestrated by the apartheid government against media on October 19, 1977. Nobel Prize-winning writer Nadine Gordimer has said that “the ANC is taking South Africa back to the suppression of free expression of apartheid.”

Some have suggested this bill has been brought on by what the Guardian has called, “a diet of corruption and financial scandals” exposed by South Africa’s press. Since 1994, the South African media has been one of the freest in Africa, but the recent phone hacking scandals in Britain have added fuel to the fire amidst calls for the press to be restrained. Yet, it is the press that exposed the phone hacking scandal as well, when Scotland Yard was allegedly seeking to cover it up.

The South African government is attempting to set up a system where all of their wrongdoings can be hidden, but where they have sole authority to release whatever information suits their purposes. In 1971, United States Supreme Court Justice Potter Stewart described this phenomenon whilst the nation’s highest court decided our government could not censor newspapers from publishing truthful, but classified information, that exposed unlawful activity. “When everything is classified, then nothing is classified,” he said. “The system becomes one to be disregarded by the cynical or the careless and to be manipulated by those intent on self-protection or self-promotion.” Such a system makes a mockery of democracy; as Supreme Court Justice Hugo Black said in that same case, “Only a free and unrestrained press can effectively expose deception in government.”

In fact, there's no example of the value of press freedom more pertinent than the story of current South African President Jacob Zuma, who originally rose to power after leaked evidence in the form of wire-tapped phone calls demonstrated that his prior prosecution had been politically motivated.

Of course, extreme secrecy can be abused even in countries with traditionally strong press protections. In the United States, the classification system has been used to hide embarrassing information, incompetence, waste or fraud, and criminal or unconstitutional conduct. EFF has documented these abuses and has called for strong reform in the past; fortunately, our First Amendment is strong and allows the press to publish such information without threat of retaliation. When the information makes it out, as it inevitably does, government officials can be held accountable and justice can be served.

The right to publish truthful information in the public interest is not just a right enshrined in the United States Constitution. It is a human right that is also the bedrock of press freedom.

As South Africans take to the streets for Black Tuesday to fight for free expression, EFF stands with them in condemning the passage of this backwards, oppressive law that as the Sunday Times says, will deprive South Africans of “the vital oxygen of free information."


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