Information Law may muzzle media

George Hadjidakis, a major shareholder in the South African 7-Eleven chain and chairperson of Premier Soccer League club Hellenic will use the Promotion of Access to Information Act (PAIA) to try to force the paper to cough up a draft of an allegedly defamatory article for his personal perusal before it is published. The case is a landmark test for the fledgling PAIA in relation to balancing freedom of expression and media freedom (Section 16 of South African Constitution of 1996) against the public's right to access to information (Section 32) from the state and private bodies.

Should Hadjidakis win the challenge a dangerous precedent will be set. The faculty of journalists and news organizations to protect the integrity of their unpublished news and source material collected during ordinary newsgathering will be fundamentally undermined. It would open the door for other public and private bodies and individuals to make PAIA requests from the media, place an unnecessary and unfair restraint on journalists and editors and subvert the constitutional value of freedom of expression and freedom of the media. In effect, a negative ruling would muzzle the media as it would make it more difficult for journalists to gather news in the public interest if they could be legally bound to part with stories prior to publication based on a PAIA application.

This attempt to use the Promotion of Access to Information Act to allow a right of preview of unpublished news stories amounts to abuse of the Promotion of Access to Information Act and prior restraint that should be vigorously resisted.

Cape Argus has grounds for refusing to provide a preview of the article in respect of its protection of the public's right to freedom of expression, freedom of information and media freedom.

PAIA does permit non-disclosure if the disclosure of information is likely to or reasonably expected to cause harm. While journalists do not enjoy any special privilege under PAIA, the Media Institute of Southern Africa (MISA)-South Africa believes that grounds for refusal can reasonably be argued due to the damage an injunction favouring Hadjidakis would cause to media freedom in general and as a consequence, the media's duty to inform the public about matters of public interest.

Cape Argus editor, Ivan Fynn also notes that information is a newspapers' stock in trade it could be argued that a title's raw copy (more particularly if the story is an exclusive or scoop) constitutes commercial information.

The case will be heard in the Cape High Court later this month

BACKGROUND

The Promotion of Access to Information Act (PAIA) that was passed in 2000 gives legal weight to Section 32 - the Freedom of Information clause - of the South African constitution. The law provides for any member of the public to access information held by any public or private body (unless exempted by the Minister of Justice) to be used in defense or pursuance of their rights.