Urgent need for clear legislation - FXI

Moreover, it has demonstrated the urgent need for clear legislation to clarify otherwise vague and untested common law principles and constitutional concepts. The interests of the effective administration of justice and maintenance of law and order compete with the right to freedom of expression.

At the core

At the core of this conflict lies the question whether the public interest in compelling the journalist to reveal his or her source or confidential information clearly outweighs the public interest in the free flow of information. This balancing test is left to judicial discretion, which is wholly insufficient when adjudicating upon a matter which could potentially have a catastrophic impact upon the foundations of our democracy.

Freedom of expression lies at the heart of our democracy and it is the media's role to give effect to this right by acting as the ‘public's watchdog' and gathering information, which is of public interest, for dissemination to the public at large. The protection of this information is essential for the proper and effective functioning of the media.

Lack of the necessary protection of journalists' sources has a chilling effect on the right to freedom of expression in that it stifles the dissemination of information to the public. The confidence that the public has in the media is undermined as journalists will inevitably be regarded as informants for the police and/or authorities. The real possibility also exists that journalists will be placed in physical danger if forced to reveal this kind of information.

May only be punished

In terms of South African law, a court may require the attendance of any person who is likely to give material or relevant information in respect of an alleged offence, in court to give testimony in respect of such information. A person who fails to appear before a court when subpoenaed to do so, or fails to provide the information requested, may only be punished for such failure if the presiding officer is of the opinion that the furnishing of such information is necessary for the administration of justice or the maintenance of law.

Moreover, section 189 specifically provides that such a person can escape conviction for such failure if he or she has a ‘just excuse'.

‘Just excuse' would in, our view, include invoking the protection of section 16(1) of the Constitution on grounds that compelling a journalist to provide such information or to reveal his or her source would constitute an unjustified and unreasonable limitation on media freedom and the public's right to receive information.

Whether or not such a limitation is justified depends on the facts of the case and falls within the sole discretion of the presiding judicial officer, which constitutes a proper Sword of Damocles over journalists' heads, specifically in view of the fact that a journalist can face a prison sentence of up to five years if it is found that he or she does not have a ‘just excuse'. This nurtures an environment where information which is of manifest public interest is hidden from public scrutiny.

Not absolute

It does, however, acknowledge the fact that the right to freedom of expression is not absolute and may be limited in certain circumstances. The lack of clarity regarding the circumstances in which disclosure can be compelled is highly problematic. Disclosure should only be compelled in instances where a real, imminent and serious harm to a right shall ensue.

These rights have already been recognised by the Constitutional Court, which has indicated that they should not be tampered with because they go to the root of the spirit of the Constitution. In any fledgling democracy, such hard-won freedoms deserve meticulous attention and should only be curtailed in the most drastic circumstances.

Moreover, it is not the role of the media to investigate crime. Journalists should not be the first port of call for the police in conducting investigations. Condoning the actions of the authorities in hounding e.tv without first attempting to investigate the matter themselves, and accusing the broadcaster of harbouring criminals, sets a very bad precedent not only for future cooperation between the authorities and the media, but also for the state of media freedom in South Africa. It is an extremely unfortunate demonstration of the unwillingness of the authorities to acknowledge civil liberties.

Premature

The recent arrest of one of the alleged ‘criminals' by the police is evidence of the fact that the subpoenas were at best premature and, at worst, wholly inappropriate.

The Freedom of Expression Institute (FXI) is in the process of submitting an urgent request to the Law Reform Commission for the review of section 205 of the Criminal Procedure Act and the introduction of a shield law which will serve to clarify the legal landscape and the roles and duties of the media and the authorities in this regard.