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									Consensus
                              VOLUME 7 ISSUE 2



 A PUBLICATION OF THE FW DE KLERK FOUNDATION




 SPECIAL

      m of
  eedo SION
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Fr ES
EXPR
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         Consensus
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                       A PUBLICATION OF THE FW DE KLERK FOUNDATION
dition: the media special edition: the media special edition: the media special edition: the media
pecial edition: the media special edition: the media special edition: the media special edition:
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                                                 ➤ SPECIAL EDITION ➤
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                                    The MEDIA
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                                    ■ The Right To Know
dition: the media special edition: the media special edition: the media special edition: the media
pecial edition: the media special edition: the media special edition: the media special edition:
                                      THE PROTECTION OF INFORmATION BILL:
he media special edition: the media special edition: the media special edition: the media special
                                    ■ media special edition: the media special edition: the media
dition: the media special edition: theDoublethink
pecial edition: the media special edition: the media special edition: the media special edition:
                                    ■ How Does the Protection of Information Bill Compare with the
he media special edition: the media special edition: the media special edition: the media special
                                       media special Classification of Government Information?
dition: the media special edition: theUS Approach to theedition: the media special edition: the media
                                    ■ Submissions of the Centre for Constitutional Rights to the Ad-Hoc
pecial edition: the media special edition: the media special edition: the media special edition:
                                      Parliamentary Committee on the special edition: the media special
he media special edition: the media special edition: the media Protection of Information Legislation
dition: the media special edition: the media special edition: the media special edition: the media
pecial edition: the media special edition: the media special edition: the media special edition:
                                      THE mEDIA APPEALS TRIBUNAL:
he media special edition: the media special edition: the media special edition: the media special
                                    ■ media special Tribunal and the Battlefield of Ideas
dition: the media special edition: theThe media Appeals edition: the media special edition: the media
pecial edition: the media special edition: the media special edition: the media special edition:
                                    ■ Is media Self-Regulation Working?
he media special edition: the media special edition: the media special edition: the media special
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          VOLUME 7                    THE BATTLEFIELD OF IDEAS:
pecial edition: the media special edition: the media special edition: the media special edition:
            ISSUE 2                  special Fighters
he media special edition: the media■ Freedom edition: the media special edition: the media special
dition: the media special edition: the media special edition: the media special edition: the media
pecial edition: the media special edition: the media special edition: the media special edition:
                                      RESOURCE SECTION
he media special edition: the media special edition: the media special edition: the media special
                                    ■ The Protection of Information Bill media special edition: the media
dition: the media special edition: the media special edition: the
                                    ■ The Right to media special
pecial edition: the media special edition: the Know Campaign edition: the media special edition:
                                     special edition: Truth Be Told
he media special edition: the media■ Declaration: Let the the media special edition: the media special
dition: the media special edition: the media special edition: the media special edition: the media
                                    ■ ministerial Review Commission on Intelligence:
pecial edition: the media special edition: the media special edition: the media special edition:
                                      memorandum on the Protection special edition: the media special
he media special edition: the media special edition: the mediaof Information Bill
                                    ■ media special edition: Discussion on the media
dition: the media special edition: theANC National General Council the media special edition: the media
                                    ■ President Barack Obama’s Executive Order the -
pecial edition: the media special edition: the media special edition: 13526media special edition:
he media special edition: the media special edition: the media special edition: the media special
                                      Classified National Security Information
dition: the media special edition: the media special edition: the media special edition: the media
                                    ■ British Housemedia special edition: the mediathe Press edition:
pecial edition: the media special edition: the of Commons Report on Self-Regulation of special
            Upholding
           South Africa’s
he media special edition: the media■ OSCE media Self-Regulation Guidebook
                                     special edition: the media special edition: the media special
                                    ■ media special edition: the media
dition: the media special edition: theReview of the New Zealand Press Council special edition: the media
         National Accord
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                                                            EDITORIAL


       The RIGHT
        to Know
         DAVE STEWARD,
         EXECUTIVE DIRECTOR OF THE
         FW DE KLERK FOUNDATION
         CAPE TOWN, NOVEmBER, 2010
             DURINg THE PAST few months we have experienced the most serious
             threat to our young democracy since it was established in 1994. The threat
             has come in the form of the Protection of Information Bill which is supposed
             to regulate the classification of government information, and ANC proposals
             for the establishment of a Media Appeals Tribunal to regulate the press.
         The Government claims that the POIB is necessary for              positions. President Zuma denies this.
         the protection of legitimate state secrets and that it has           The Press Council has responded by initiating a broad
         no intention of limiting public access to bona fide public        investigation into ways and means of strengthening the
         information. The Government has responded positively              efficacy of media self-regulation. After recent meetings be-
         to the criticism of the Bill and has removed some of the          tween Deputy President Motlanthe and SANEF, the South
         most problematical elements. It has agreed to exclude the         African National Editors Forum, there were indications
         very broad and contentious provision that any information         from some elements in the ANC leadership that demands
         deemed to be “in the national interest” can be classified         for the establishment of the MAT might be dropped, pro-
         and has also agreed to remove commercial information              vided that media self-regulation can be suitably strength-
         from the ambit of the legislation. However, critics claim         ened. For some observers, this raised the fear that the
         that the Bill will still give the state the power it needs to     press might be coerced into a system of self-censorship
         withhold crucial information from public scrutiny and that it     by government pressure. However, since then, President
         still includes harsh mandatory penal provisions without the       Zuma has made it clear that the ANC is determined to
         possibility of a public interest defence.                         press ahead with the MAT.
             At it’s 2007 National Conference in Polokwane the ANC            All this has elicited the broadest and deepest reaction
         proposed that consideration should be given to the estab-         from civil society and concerned South Africans since
         lishment of a Media Appeals Tribunal. It believes that the        1994. More than 400 NGOs have joined the Right2Know
         right to freedom of expression is not absolute and must be        coalition in raising their voices against the POIB and the
         balanced against other rights - such as the right to human        MAT. They are being joined increasingly by concerned or-
         dignity. It charges that the present system of press self-        ganisations and governments all over the world.
         regulation is ineffective and is biased in favour of the press.      Because of the seriousness of these threats to the free-
         It also believes that the press is unrepresentative of the full   dom of expression and the complexity of many of the is-
                                                                                                                                             editorial




         spectrum of views in the national debate. Critics fear that       sues involved, the F W de Klerk Foundation has decided
         state regulation of the press would be a severe blow to           to dedicate this entire edition of Consensus to the Protec-
         freedom of expression. They believe that the government           tion of Information Bill and the Media Appeals Tribunal. We
         wants to establish the MAT, not primarily to improve the          want to facilitate national debate on these issues by pro-
         quality and fairness of journalism, but to ensure that the        viding a resource base to anyone who is interested in the
         media supports the government’s policies and ideological          serious issues involved.




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          ■ THIS EDITION INCLUDES ARTICLES ON:

          • the origin and scope of the POIB (Doublethink);
          • the differences between the POIB and President Obama’s approach to the classification of government information
           (The US and South African Approaches to the Classification of Government Information);
          • the origin of the Media Appeals Tribunal and European and British approaches to media self-regulation,
            as well as the ANC’s views on the proper role of the press (The Media Appeals Tribunal and the Battlefield of Ideas);
          • the functioning and efficacy of South Africa’s existing system of media self-regulation (Is Media Self-regulation Working?);
          • the Centre for Constitutional Rights’ submissions to the Parliamentary ad-hoc committee on the Protection of
            Information Legislation of 25 June, 2010;
          • increasingly voluble attacks by government leaders on liberal values (Freedom Fighters).

          In addition to these articles, we are including a number of source documents
          which should provide the reader with deeper insight into the issues involved as well as
          international practice with regard to the classification of government information
          and media self-regulation.



          ■ THEY INCLUDE:

          with regard to the Protection of Information Bill –
          • Extracts from the Ministerial Review Commission on Intelligence’s Memorandum on the Protection of Information Bill;
          • Extracts from President Obama’s Executive Order 13526 on Classified National Security Information;
          • Internet link to the Protection of Information Bill.

          with regard to the media Appeals Tribunal –
          • Extracts from the ANC National General Council discussion document on the Media;
          • Letter from President Zuma on the MAT - ANC Today, 13 - 19 August 2010
           (including the full text of the Polokwane Resolution on the MAT);
          • The recommendations of the British House of Commons Report on Self-regulation of the Press;
          • Extracts from the OSCE Media Self Regulation Guidebook;
          • Analysis of the New Zealand Press Council of 87 Press Councils around the world.

          with regard to the campaign to protect the freedom of expression –
          • Statement of the Right2Know Campaign;
          • Sections 1, 16 and 36 of the Constitution;
          • Internet link to the Right2Know campaign. ●




            “In addition to these articles, we are including a number
             of source documents which should provide the reader
             with deeper insight into the issues involved as well as
           international practice with regard to the classification of
             government information and media self-regulation.”


     2    VOLUME 7 • IS S U E 2
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                    THE PROTECTION OF INFORmATION BILL


                          DoubleTHINK
                                        IN gEORgE ORWELL’S CLASSIC, 1984,
                     ‘doublethink’ is the ability to hold two diametrically opposing views
                            on the same topic at the same time. As Orwell put it
                 “to repudiate morality while laying claim to it, to believe that democracy
                    was impossible and that the Party was the guardian of democracy.”
                    Doublethink appears to have been the mindset of the authors of the
                       Protection of Information Bill that is currently before Parliament.

         On the one hand the Bill recognizes the “harm of exces-              fied and kept away from public examination.
         sive secrecy” and the need to “promote the free flow of                  Heads of state organs would be able to delegate their
         information within an open and democratic society”. On               responsibility for classification to any ‘subordinate staff
         the other it establishes the basis for the extreme and ar-           member’ - so the free flow of information could be shut
         bitrary restriction of public access to government informa-          down at a relatively low level. Whole file series - or classes
         tion. It does so by creating such broad scope for the clas-          of information - could be classified on a collective basis.
         sification of information; such wide executive powers and                The public can appeal to have information declassified:
         such draconian punishments - that the government would               to whom? - to the Minister whose department classified
         be able to staunch the flow of information to the public as          it! Fortunately, the public could still request access to
         it sees fit.                                                         classified information via the Promotion of Access to In-
             Any government information can be classified if its dis-         formation Act. Where the Minister refuses such requests,
         closure would be harmful to the ‘national interest’. The ‘na-        applicants would be able to lodge an appeal with a PAIA
         tional interest’, in turn, is defined so broadly that it could af-   tribunal. There is, however, a catch: If the requested in-




                                                                                                                                                 the protection of information bill
         fect any government activity. It includes “all matters relating      formation is classified as top secret the government may
         to the advancement of the public good” and “the pursuit of           refuse to confirm or deny it even exists!
         justice, democracy, economic growth, free trade, a stable                The draconian penalties prescribed by the Bill include
         monetary system and sound international relations”. It also          sentences between 3 and 25 years without the option
         covers the “the protection and preservation of all things            of a fine. This is particularly intimidating, because the ac-
         owned or maintained for the public by the State” - thus              cused would, according to legal experts, not even be able
         potentially removing from public scrutiny information about          to mount a public interest defence.
         problematical parastatals like Eskom and SAA .                           All governments have legitimate reasons for protect-
             The Bill goes further. It extends classification to com-         ing secret military, security and diplomatic information - as
         mercial information in the government’s possession if the            well as private and personal financial and medical records.
         disclosure of the information could endanger the ‘national           However, experience shows that they also have a strong
         interest’ or the interests of organisations or individuals.          inclination to conceal information exposing corruption,
         Thus, documents relating to state tenders could be classi-           incompetence and the illegitimate pursuit of private and



           “The draconian penalties prescribed by the Bill include
         sentences between 3 and 25 years without the option of a
              fine. This is particularly intimidating, because the
            accused would, according to legal experts, not even be
                  able to mount a public interest defense.”


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          party interests (vide the Arms Deal). The bill does, indeed,      is meant to replace - the Bill’s penalties do not include the
          make classification of information for such illegal purposes      option of a fine. This will further intimidate whistleblowers
          punishable by prison sentence up to three years (with the         and journalists by ensuring that those who divulge state
          option of a fine). However, in another Orwellian twist, it is     information will serve long prison sentences without the
          most unlikely that information concerning illegal classifica-     possibility of others paying their fines.
          tion would ever come to light since it would itself be clas-         Thirdly, the reintroduced Bill has scrapped the impor-
          sified! Everything depends on the government’s intentions         tant limitation included in the 2008 Bill that classification
          - and there are some disturbing pointers to the intentions        “should be used sparingly”.
          behind this Bill.                                                    Finally, the Minister of National Intelligence, Dr Siya-
               Firstly, the authors have almost entirely ignored the rec-   bonga Cwele, has made it clear that he intends to criminal-
          ommendations of the 2006 Ministerial Review Commis-               ise the activities of what he calls “information peddlers”.
          sion on Intelligence that was established to consider the         NIA’s legal advisers have admitted that whistle-blowers
          Bill’s predecessor which was withdrawn after a vehement           would be charged if they were caught with classified docu-
          outcry in 2008. The Commission comprised Joe Matthews,            ments. Cwele has insisted that government wrong-doers
          Dr Frene Ginwala and Laurie Nathan. It acknowledged that          should not be exposed in the media - but should rather be
          “the 2008 Bill recognized “the importance of transparency         reported to the relevant authorities.
          and the free flow of information”… but added that it “also           The Bill is irreconcilable with the Constitution’s founding
          has a number of provisions that are likely to promote se-         principles which “ensure accountability, responsiveness
          crecy. In particular the Bill’s approach to ‘secrecy in the       and openness.” The Constitution guarantees freedom of
          national interest’ is reminiscent of apartheid-era legislation    expression, including the freedom to receive and impart in-
          and is in conflict with the constitutional right of access to     formation or ideas. Section 32 states that everyone has the
          information.”                                                     right “to access to any information held by the state”. The
              The Commission was critical of the Bill’s complexity          courts have repeatedly upheld these rights, most recently
          and of the central role that it gives to the National Intel-      last month when the South Gauteng High Court held that
          ligence Agency precisely because the NIA“… is not ori-            ‘The role of the media in a democratic society cannot
          ented towards promoting the constitutional right of access        be gainsaid. It … includes informing the public about
          to information.” It observed that “even if the disclosure of      how our government is run, and this information may
          certain state information does endanger some aspect of            very well have a bearing on elections…. Access to in-
          the national interest, from a constitutional perspective it       formation is crucial to accurate reporting and thus to
          might often be the case that non-disclosure poses a great-        imparting accurate information to the public’
          er threat to the national interest.”                                 The Bill’s professed support for the free flow of informa-
              The Commission scathingly criticised the all-encom-           tion is cynical doublethink. Its single-minded intention is to
          passing concept of ‘national interest’ and recommended            control the flow of government information by inhibiting
          that it should be scrapped. It said that only the Minister        whistleblowers and stopping investigative journalism. It is
          of Intelligence should have the prerogative to classify cat-      a direct assault on the Constitution and should be vigor-
          egories of information - subject to comment by parliament         ously opposed by all South Africans who support consti-
          and interested parties. It called the government’s ability to     tutional government. Our Centre for Constitutional Rights
          refuse to confirm or deny the existence of top secret infor-      and several other NGOs have expressed their strong op-
          mation ‘Orwellian’ and recommended that declassification          position in submissions to the intelligence parliamentary
          appeals should be directed - not to the Minister involved -       portfolio committee. The remedy is simple: the Bill should
          but to the Human Rights Commission or to a court.                 be withdrawn and redrafted in accordance with the recom-
              The second pointer is that - unlike the 1982 Act that it      mendations of the Ministerial Review Commission.             ●




           “The Bill’s professed support for the free flow of informa-
           tion is cynical doublethink. Its single-minded intention is to
           control the flow of government information by inhibiting
            whistleblowers and stopping investigative journalism.”


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                    THE PROTECTION OF INFORmATION BILL


                How Does
           The Protection of
            Information Bill
           COMPARE with
         The US APPROACH
         to The Classification
            of Government

                                                                                                                                                  the protection of information bill
              Information?
                                          THE DEBATE CONTINUES TO RAgE
                   over the Protection of Information Bill which has been introduced in
                Parliament to establish a new system for the classification of government
                  information. Its proponents claim that the Bill is necessary to protect
                government information from ‘enemies’. Its opponents charge that it is a
                threat to the accountability, responsiveness and openness that are at the
                             heart of our multiparty constitutional democracy.

         All states have a bona fide duty to protect genuinely sen-          should be considered for classification. In the South African
         sitive government information. It might accordingly be              Bill the definition is very wide. It includes “all matters relat-
         instructive to compare the approach in the Protection of            ing to the advancement of the public good” and “the pur-
         Information Bill with the provisions of the Executive Order         suit of justice, democracy, economic growth, free trade, a
         on Classified National Security Information that President          stable monetary system and sound international relations”.
         Obama promulgated in December last year.                            It also includes commercial information held by the Govern-
              The first distinction lies in the definition of matters that   ment as well as information relating to state owned enti-




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          ties. This means that virtually any
          government information, including
                                                      “By contrast, the                               locate it. However, requests for
                                                                                                      declassification do not apply to in-
          information on parastatals and gov-         US Executive Or-                                formation that is the subject of liti-

                                                    der is very precise.
          ernment tenders, would fall within                                                          gation or that is contained in files
          the scope of classification and so                                                          that are exempted from search
          be withheld from the public.
              By contrast, the US Executive
                                                     Information can be                               and review.
                                                                                                          Finally, the South African sys-
          Order is very precise. Information
          can be considered for classification
                                                   considered for classi-                             tem prescribes severe penalties
                                                                                                      - including prison terms ranging
          only if its unauthorized disclosure      fication only if its un-                           from 3 to 25 years - for any unau-
          could reasonably be expected to                                                             thorized person who obtains, dis-
          harm national security. National se-     authorized disclosure                              seminates or is in possession of
          curity is precisely defined to include
          matters such as military plans and        could reasonably                                  classified information. The penal-
                                                                                                      ties in the US Order, by contrast,
          weapons systems; foreign rela-
          tions; intelligence activities; weap-
                                                   be expected to harm                                are directed solely at government
                                                                                                      employees who are responsible
          ons of mass destruction; and sci-          national security.”                              for handling classified information.
          entific, technological or economic                                                          The sanctions may include a rep-
          matters that might affect national                                                          rimand, suspension without pay,
          security. It is important to note that the anticipated dam-      removal or the termination of classification authority.
          age to national security must be identifiable and describable.       To sum up: the proposed South African classification
          Moreover, “if there is any significant doubt about the need      system could affect virtually any state information whereas
          to classify information, it shall not be classified.”            the US Order is precisely limited to clearly defined security
              In the proposed South African system, the National In-       information; the South African system would be adminis-
          telligence Agency - which may be presumed to have a bias         tered by the National Intelligence Agency whereas the US
          toward maximum secrecy - would have overall responsi-            system is under the aegis of the National Archives; the
          bility for the implementation of the classification of gov-      US system makes provision for appeals to a multiagency
          ernment information. The key agency in the US classifica-        panel while South Africans would have to appeal against
          tion system is, perhaps more appropriately, the National         classification decisions to the Minister of the Department
          Archives. The Executive Order establishes within the Na-         that took them in the first place. Finally, anyone breaching
          tional Archives an Information Security Oversight Office,        the South African act could be subject to severe criminal
          headed by a Director, to oversee implementation of the           penalties, whereas the US system would apply administra-
          information classification system.                               tive sanctions only to government employees.
              There are also differences with regard to appeals proc-         Both the US Executive Order and the South African Pro-
          esses. South Africans may apply to the relevant department       tection of Information Bill profess adherence to the free
          head to have information declassified provided that they can     flow of information between the government and the peo-
          describe the subject matter of the information with suffi-       ple. Both specifically prohibit classification for improper
          cient clarity to enable the department head “to locate it with   purposes. However, the two approaches would clearly
          ease”. If the department head rejects the request, the appli-    have very different outcomes in terms of public access to
          cants may appeal to the Minister involved. In the US system      government information.
          appeals are considered by an Interagency Security Classifi-         The United States, with global military and diplomatic
          cation Appeals Panel comprising representatives from the         commitments that far surpass those of South Africa, has
          principal security departments and agencies. Authorised          adopted an approach to the classification of government
          holders of classified information who believe that informa-      information that is far less draconian than the system that
          tion is improperly classified are expected to challenge the      South Africa wishes to implement in terms of the Protec-
          classification status of the information, first with their own   tion of Information Bill. The question inevitably arises as to
          agency and, if they are not successful, with the Panel.          the underlying purpose of the Bill: is it a bona fide attempt
              Provision is also made for requests for a mandatory de-      to establish a constitutionally compliant classification sys-
          classification review provided - as with the South African       tem - or is it really intended to stop the flow of embarrass-
          system - that the document or material can be described          ing government information to the people via whistleblow-
          with sufficient specificity to enable the relevant agency to     ers and investigative journalists?                             ●




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                   THE PROTECTION OF INFORmATION BILL


         SubMISSIONS Of
           The Centre for
         Constitutional Rights
           to The Ad-Hoc
           Parliamentary
           Committee on
         THE PROTECTION

                                                                                                                                           the protection of information bill
           of Information
             Legislation
                                 RE: SUBmISSIONS ON THE PROTECTION
                                    OF INFORmATION BILL [B6 – 2010].
         1. The Centre for Constitutional Rights (the Centre) is a          concerned about the bearing that certain provisions in
            non-profit organization dedicated to upholding the Con-         the Bill have on the Constitution.
            stitution.1 To this end, the Centre seeks to promote the     2. With the advent of our constitutional democracy, where
            values, rights and principles in the Constitution; monitor      parliamentary rule made way for constitutional suprem-
            developments, including draft legislation that might af-        acy, the point of departure for the analysis of any draft
            fect the Constitution; inform people and organisations          legislation must be the Constitution.
            of their constitutional rights; and assist people and or-
            ganisations to claim their rights. The Centre accordingly
            welcomes the opportunity to make submissions on the
            Protection of Information Bill (the Bill) as the Centre is      1.
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          3. In these premises, the relevant constitutional impera-                 Bill reads thus: “… to- … promote the free flow
             tives that should inform the debate on the Bill are those              of information within an open and democratic so-
             that are enshrined in sections 1, 2, 7, 8, 16, 32, 33, 34,             ciety…” The inconsistency lies in that, read as a
             36, 41(c), 199(8) and 231.                                             whole, the Bill broadly restricts access to informa-
                                                                                    tion. In so doing, the Bill facilitates a culture of
                                                                                    opacity and its corollary, the abuse of power. It
          ■ CONSTITUTIONAL ImPERATIVES                                              therefore has the effect of undermining the found-
                                                                                    ing values of accountability and transparency.
          4. Section 1 provides that South Africa is founded on
              the values of constitutional supremacy and the rule of       13. The Centre is also concerned about the violation of
              law. Both of these values are anchored in the principle          specific constitutionally guaranteed rights, namely: the
              of legality, which mandates legislation to be clear and          right of access to information,2 the right to freedom
              unambiguous. In addition, section 1(d), read in conjunc-         of expression,3 specifically the freedom of the press
              tion with sections 41(c) and 195(1)(f) & (g) establishes         and the right to have disputes adjudicated by a court
              the principles of transparency and accountability as             of law.4
              fundamental tenets of good governance.                           13.1 The right to freedom of expression and the right of
          5. Section 7, read with section 8, enjoins the Ad Hoc                     access to information are integral to our demo-
              Committee on the Protection of Information Legisla-                   cratic order, because it is through the free flow
              tion (the Committee) to “respect, protect, promote                    of information and ideas that citizens can: (a) par-
              and fulfil the rights in the Bill of Rights”.                         ticipate in public life, (b) take part in decisions that
          6. Section 16 enshrines the right to freedom of expres-                   affect their lives and (c) hold the government of
              sion, which expressly includes, inter alia, the freedom               the day accountable.
              of the press and other media, as well as the freedom                  13.1.1 This sentiment was recognized in the
              to receive or impart information or ideas.                                     recent judgment of M & G Limited and
          7. Section 32 guarantees the right of access to any                                Others v 2010 FIFA World Cup Organis-
              information held by the state or by another person, to                         ing Committee South Africa Limited and
              the extent that such information is required for the ex-                       Another. 5In casu, the court echoed the
              ercise or protection of any right.                                             Constitutional Court’s assertion that: ‘…
          8. Section 33 provides for the right to just administrative                        access to information is fundamental to
              action, which includes the right to be given written rea-                      the realisation of the rights guaranteed in
              sons for an adverse decision, and the review of admin-                         the Bill of Rights. For example, access to
              istrative action by a court of law.                                            information is crucial to the right to free-
          9. Section 34 entrenches the right to have any dispute                             dom of expression which includes free-
              adjudicated by a court of law.                                                 dom of the press and other media and
          10. Section 36 permits the limitation of any right, provided                       freedom to receive or impart information
              that such a limitation is in terms of a law of general ap-                     or ideas’.6
              plication, and it is reasonable and justifiable in an open                     13.1.1.1 The court in that case recognised
              and democratic society.                                                                  the media as the watchdog that
          11. Section 231(2) binds the Republic to its international                                   needs to fulfil its role in keeping
              agreements entered into.                                                                 the public informed.7 It noted fur-
                                                                                                       ther that: ‘The role of the media
                                                                                                       in a democratic society cannot be
          ■ GENERAL SUBmISSIONS                                                                        gainsaid. Its role includes inform-
                                                                                                       ing the public about how our gov-
          12. The Centre is concerned that the Bill transgresses the                                   ernment is run, and this informa-
              underpinning constitutional values of accountability,                                    tion may very well have a bearing
              transparency and open governance.                                                        on elections. The media there-
              12.1 The Centre believes that there is an inconsistency                                  fore has a significant influence in
                   between the stated purpose of the Bill on the one                                   a democratic state. This carries
                   hand, and the purpose that it serves in actuality                                   with it the responsibility to report
                   on the other hand. The purported purpose of the                                     accurately. The consequences of




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                                    inaccurate reporting may be dev-             tasked with taking into consideration a plethora
                                    astating. Access to information is           of regulations, guidelines and legislation when
                                    crucial to accurate reporting and            determining a classification. This will require a
                                    thus to imparting accurate infor-            high degree of skill and experience. In its present
                                    mation to the public’.8                      form, where the authority to classify may be del-
         14. As the primary agents of the dissemination of informa-              egated to any official, there is no guarantee that
             tion and ideas, the mass media have an important                    the functionary will possess the requisite level
             role to play in fostering that right. This principle was            of competence. The Centre thus proposes that
             forcefully affirmed by our Constitutional Court when it             the power to delegate be restricted to the level
             acknowledged that: “In a democratic society… the                    of deputy head of a state organ and no lower.
             mass media play a role of undeniable importance.             17.1.2 “Commercial information”: The definition in
             They bear an obligation to provide citizens both                    its present form encompasses all information
             with information and with a platform for the ex-                    held by the state that has a commercial bear-
             change of ideas which is crucial to the development                 ing, including commercial information about
             of a democratic culture.”9 The limitation of the mass               private individuals and corporate entities. Since
             media’s right of access to information should, in these             the internationally accepted purpose of protect-
             premises, be in exceptional circumstances.                          ing certain information is to ensure that informa-
                                                                                 tion that is harmful to the security of the state
         15. The Centre acknowledges that there may be a need                    is not disclosed, the Centre is of the view that
             for secrecy with respect to sensitive documents whose               commercial information has no place in this Bill.
             disclosure would have a bearing on national security.               In the extreme case, were disclosure of com-
             15.1 The Centre submits, however, that any legisla-                 mercial information concerning the state could
                   tion protecting the disclosure of such documents              potentially harm national security, prohibition of
                   should strenuously aim to strike a balance be-                disclosure would be covered by the Promotion
                   tween ensuring national security and the con-                 of the Access to Information Act (PAIA).10 In the
                   stitutional imperatives of open and accountable               alternate, the Centre proposes that restrictions
                   governance that is based on the free flow of infor-           on disclosure of commercial information should
                   mation. In its present form, with overbroad defini-           be restricted to state information and that the




                                                                                                                                                the protection of information bill
                   tions and speculative thresholds for the classifica-          definition should be linked to the effect of the
                   tion of information and severe criminal sanctions             disclosure. The definition should thus be quali-
                   without the option of a fine and without affording            fied by the phrase: “the disclosure of which
                   a public interest defense in respect of the criminal          would cause significant and demonstrable harm
                   prohibitions, the Bill would severely hamper the              to national security.”
                   free flow of information.                              17.1.3 “Information”: The Centre proposes that the
                                                                                 definition be restricted to information that is
                                                                                 strictly related to matters of state security, and
         ■ SPECIFIC SUBmISSIONS                                                  not information of “any kind”.
                                                                          17.1.4 “Intelligence”: this definition is so broad that
         16. In addition to these general concerns, the Centre is                it covers all information held by the state. Given
             also concerned about specific clauses in the Bill.                  the over-broad definition of “national interest”,
             For ease of reference, these clauses will be dealt with             (which, likewise virtually covers all information
             in seriatum.

         17. AD CLAUSE 1:
             17.1.1 “Classification authority”: The extent to which       2.
                                                                              Section 32 of the Constitution
                    secrecy is fostered and access to information         3.
                                                                              Section 16 of the Constitution
                                                                          4.
                                                                              Section 34 of the Constitution
                    hampered is largely determined by the classi-         5.
                                                                              (09/51422) [2010] ZAGPJHC 43 (8 June 2010)
                    fication of documents. The role played by the         6.
                                                                              Ibid. at para 341.
                                                                          7.
                    classification authority is thus pivotal to the           Ibid. at para 340.
                                                                          8.
                                                                              Ibid. at para 341.
                    reach of this Bill. In addition, the authority is     9.
                                                                              Khumalo and Others v Holomisa 2002 (5) SA 401 (CC) at para 22
                                                                          10.
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                    held by the state), reference to “intelligence”              closure of which would cause prejudice to national
                    in the Bill is redundant. The Centre proposes                security, the defence of the Republic, the international
                    therefore that it be deleted from the Bill                   relations of the Republic or materially affect the eco-
             17.1.5 “Public interest”: As with “national interest”,              nomic interests and financial welfare of the Republic.”
                    this definition is so over-broad that it fails to add
                    clarity or certainty as to its full ambit. In addition,   20. AD CLAUSE 7:
                    the phrase “or are in accordance with the Cons-               20.1 The Minister is well qualified to prescribe catego-
                    titution” is redundant, as any promotion would                     ries of information that should and should not be
                    have to be in accordance with the Constitution.                    protected and standards and procedures for classi-
                    The Centre therefore suggests that this phrase                     fying and declassifying the information. However,
                    be deleted. In the alternative, the Centre sub-                    as noted in the Ministry for Intelligence Services’
                    mits that “or” should be replaced with “and”;                      1994 white paper on Intelligence, it is essential
                    so the clause would read: “and are in accord-                      that there be legal limits on secrecy, both in re-
                    ance with the Constitution”.                                       spect of criteria and time frames for classification
             17.1.6 “Sensitive information”: In order to ensure                        and declassification, so as to avert the danger of
                    the least restrictive inroads into the free-flow of                the intelligence system becoming self-serving,
                    information, the Centre is of the view that “sen-                  as was the case under the apartheid regime. The
                    sitive information” should be limited to informa-                  Centre would thus propose that sub-clause 7(1)
                    tion that has bearing on national security.                        (c) be amended to include the phrase “and time
             17.1.7 “State information”: This definition is a catch-                   frames” after the phrase “national information
                    all phrase, which includes all forms of informa-                   security standards and procedures”.
                    tion. In the Centre’s view, it should be limited              20.2 Sub-clause 7(2) should be amended to refer to
                    by reference to the potential harm that would                      subsection (1)(c), and since standards cannot in-
                    result in disclosure.                                              clude the subject matter referred to, the clause
                                                                                       should be altered to read: “The national informa-
          18. AD CLAUSE 3:                                                             tion security standards referred to in subsection
              18.1.1 The Centre is generally concerned with the                        (1)(c) shall include standards relating to, but not
                     undefined power given to the Minister in terms                    limited to …”
                     of which s/he can exempt certain organs of                        20.2.1 It is not clear why the Minister should only
                     state from the application of the Bill. In addition,                      consult with the Minister of Police on is-
                     since the exemptions relate to checks and bal-                            sues of physical security for the protection
                     ances which aim to guarantee good governance                              of information. In any event, Clause 7(2)(d)
                     and accountability, the degree of “good cause”                            would have to be amended to read: “physi-
                     should be defined in the Bill.                                            cal security for the protection of informa-
              18.1.2 The clause also leaves unclear the issue of                               tion, as decided upon in consultation with
                     whether the Minister’s discretion to regulate the                         the Minister of Police.” The Centre would
                     implementation of the Bill is to be exercised mero                        suggest that input from the Minister of Po-
                     motu or on application by an interested party.                            lice also be obtained in respect of security
              18.1.3 With respect to clause 3(2)(a) – (e): The consti-                         of personnel.
                     tutional principles that inform good governance              20.3 The Centre notes that clause 7(3)(a) may have
                     require the setting of standards and procedures.                  been intended to curtail the Minister’s discretion
                     In the absence of an explanation as to why ex-                    that is accorded to him in terms of 7(1). However,
                     ceptions should be permitted, any such provi-                     the Centre is of the view that sub-clause (3)(b)
                     sions are unconstitutional.                                       detracts from the provision in sub-clause (3)(a) to
                                                                                       the extent that it reads that the Minister “may”,
          19. AD CLAUSE 4:                                                             and does not have to take into account comments
              Given the overly broad definition of “state information’,                received in terms of sub-clause (3)(a). It should be
              which includes all information held by the state, this                   peremptory for the Minister to take into account
              clause provides a sweeping blanket for unrestricted                      comments received, failing which public and
              censorship. The Centre proposes that the definition of                   other state participation is rendered nugatory. In
              state information be amended with the proviso: “dis-                     these premises, the Centre suggests that “may”




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                  be replaced with “must” in sub-clause (3)(b).                     making by government officials and thereby en-
                                                                                    able optimal efficiency, as is required in terms of
         21. AD CLAUSE 8:                                                           section 195 of the Constitution. In addition, the
             21.1 Clause 8(1) directs the head of each organ of state               infinite scope will inevitably lead to over-classifi-
                  to establish departmental policies, directives and                cation of state information. It is noted that sub-
                  categories for classifying information. While that                clause 11(4) requires that the determination of
                  is, clause 8(2) provides that the policies and direc-             what is in the national interest is to be guided by
                  tives should not be inconsistent with the national                the founding values of our Constitution. However,
                  information security standards. The Centre is of                  as stated earlier, this is not possible since these
                  the view that the two sections could potentially                  values are essentially incompatible with the no-
                  be inconsistent with each other, since the starting               tion of secrecy, on which the Bill is premised.
                  point for determining national information security
                  standards is to protect information the disclosure       23. AD CLAUSE 12:
                  of which is deemed adverse to national security,             23.1 Virtually all National governments employ a sys-
                  whilst the starting point for other heads of state is             tem of classifying information so as to protect in-
                  the constitutional imperative to promote access to                formation which would damage or endanger na-
                  information. The Centre accordingly suggests that                 tional security from being used or being placed
                  in order to promote uniformity and consistency at                 in the hands of wrong parties. The classification
                  the national level, there should be an independent                of such information depends on the extent of
                  body established that prescribes such standards                   the potential damage which disclosure of the
                  and procedures. In the alternative, the Centre sug-               information might cause. This approach to clas-
                  gests that they be drafted by the Minister, and ap-               sifying information inevitably warrants imple-
                  proved by an independent body. A precedent is to                  menting different levels of protection. Although
                  be found in sections 83 and 84 of PAIA, in terms                  the classification systems may differ from coun-
                  of which the participation of the Human Rights                    try to country, most have levels which varyingly
                  Commission is mandated.                                           correspond to the British system. This is prem-
                                                                                    ised upon two broad categories of information:
         22. AD CLAUSE 11:                                                          (a) information that has the potential of being




                                                                                                                                            the protection of information bill
             22.1 This clause, together with clauses 12 and 15, are                 harmful to national security if released, and (b)
                  the most problematic clauses in the Bill. Given                   sensitive information, the release of which would
                  the all encompassing scope of the definitions of                  cause possible injury to particular public or pri-
                  information, combined with the complex, impre-                    vate interests. Generally, information in the lat-
                  cise procedure set for classification, these claus-               ter category is not classified and restrictions on
                  es offend against the Rule of Law, and specifically               disclosure depend on the degree of sensitivity.
                  the principle of legality, and thus do not pass con-              23.1.1 With the two categories in mind, the
                  stitutional muster. The Rule of Law requires that                          Centre submits that the information that
                  the law must, on its face, be clear and ascertain-                         this Bill should seek to protect is that
                  able. This requires precise and careful drafting. It                       whose release could result in harm be-
                  also requires that in exercising any administrative                        ing done to national security. PAIA ad-
                  function, state officials should be bound by and                           equately governs the release of sensi-
                  should apply clearly expressed law, as opposed to                          tive information. Accordingly, the Centre
                  acting on a whim. As such, the rule of law augurs                          would propose that commercial informa-
                  against state functionaries being granted wide                             tion be excluded from the ambit of clas-
                  discretionary powers. The definition of “national                          sification. The Centre is mindful of the
                  interest” is so broad that it is difficult to conceive                     fact that certain commercial information
                  of anything which would not fall within its ambit.                         could be harmful to state security, but
                  Not only does this make it impossible to ascertain                         disclosure of such information is pro-
                  the exact scope of the term, but its application                           tected in terms of section 42 of PAIA.
                  will also vary in practice, depending on varying in-         23.2 In the event of the Committee deciding to retain
                  terpretations by different functionaries. Thus, the               commercial information as information requiring
                  clause also fails to facilitate consistent decision               protection against disclosure in terms of this Bill,




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                   the Centre is of the view that the clause is far too    25. AD CLAUSE 16:
                   broad generally, but specifically, sub-clause 12(1)         Clause 16(1) permits the head of an organ of state to
                   (a) and (b). The Centre is of the view that sub-            classify his or her organ’s information. It also permits
                   clause 12(1) unduly traverses on various rights             delegation of this authority. The Centre is concerned
                   contained in the Bill of Rights, including the right        that this provision compromises the values of account-
                   of access to information, all the rights enjoyed by         ability and transparency. As with the case of de-classi-
                   the media and the principle of accountability.              fication, the Centre would propose that the head of the
                   23.2.1 With respect to clause 12(2), the Centre             organ of state retains accountability for any decisions
                           is of the view that the phrase “informa-            taken in terms of sub-delegated authority.
                           tion which may” is over broad. The Cen-
                           tre suggests that the intensity and prox-       26. AD CLAUSE 21:
                           imity of the harm be quantified and that            26.1 The test set for the declassification of informa-
                           the threshold be set at “grave damage to                 tion is substantially higher and more precise than
                           national security”.                                      that set for classification. The Centre would pro-
                                                                                    pose that the same test should apply to both clas-
          24. AD CLAUSE 13:                                                         sification and de-classification.
              24.1 This clause is unduly restrictive. The preamble of      26.1.1 The clause itemises various criteria which might be
                   our Constitution lays the foundation for an open                 taken into consideration. In contrast, clause 22,
                   and democratic society, in which the government                  which provides for the review of the classified
                   is based on the will of the people. It thus asserts              status by the head of the organ of a state, makes
                   the right of all citizens to know about the activi-              consideration of the specified criteria obligatory.
                   ties of the Government and to hold the govern-                   In order to avoid the inconsistency, the Centre
                   ment accountable. This the citizens can only do                  proposes that clause 22(2)(a) be amended to
                   if they have access to information, as has been                  read: “Specific consideration must include, but
                   confirmed by our courts (supra). In contrast, the                need not be limited to…”
                   purpose of classification is to protect disclosure of
                   certain information. In order to pass constitutional    27. AD CLAUSE 25:
                   muster, the policy informing the process must be            27.1 This clause provides for an appeal procedure if the
                   founded on sound constitutional principles. These                organ of state denies a request for declassifica-
                   principles should include the promotion of:                      tion or for lifting the status of information. The
                         • Accountability through enabling access to                clause provides that the person requesting the
                           information, wherever possible, and re-                  information may appeal to the Minister.
                           stricting classification to that which is           27.2 A foundational tenet of the rule of law requires
                           strictly necessary;                                      that “in propria causa nemo iudex”,11 which
                         • The rule of law, through providing a clear               means that no one can be a judge in his or her
                           and unambiguous understanding of what                    own cause. The Centre accordingly proposes
                           must be classified; and                                  that an appeal should, in the first instance be
                         • Good governance through ensuring con-                    directed to an independent body, such as the
                           sistency of application by minimising dis-               South African Human Rights Commission.
                           cretionary powers.                                  27.3 Appeals from that bodies’ decision should be to
                   In contrast, the procedure envisaged in the Bill                 a court of law.
                   is extremely complex, is expressed in imprecise
                   terminology and is not conducive to consistent          28. AD CLAUSE 30:
                   or uniform decision making. The tests to classify           The mission of the Agency is to manage information
                   information as confidential or secret are set at            pertaining to the stability and security of the State with
                   unacceptably low thresholds of harm, are vague,             a view to promoting the interrelated elements of se-
                   and involve subjective judgments. Although the              curity, stability, cooperation and development, both
                   degree of harm required for ‘top secret’ classifi-          within South Africa and in relation to Southern Africa
                   cation is identified, the nature of the harm itself         and the world at large. The Agency is thus well placed
                   is nonetheless unclear owing to the overly broad            to manage and monitor the protection of information,
                   definition of ‘national interest’.                          the disclosure of which would impact negatively on the




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                     “The Centre submits that an integral part of an
                      open and accountable democracy is that the
            media has access to public records. Given the centrality
               of the media’s role in the facilitation of an open
              and accountable democracy, the Centre is of the
          view that the extremely harsh penalities without the option
             of a fine will inhibit any investigative journalism.”

            interrelated elements of security, stability, cooperation        to require one judge. In any event, no corresponding
            and development. The Centre is of the view that by its           provision exists in PAIA.
            very nature, the Agency is accordingly not well placed
            to simultaneously promote access to information. The          31. AD CLAUSE 48:
            Centre would thus suggest that the South African                  31.1 Ad clause 84(1)(f): As stated supra, the Centre
            Human Rights Commission should accordingly be in-                      is of the view that commercial information should
            volved with the implementation and monitoring of the                   be excluded from the ambit of this Bill. Should pro-
            protection of information practices and programmes                     tection of commercial information pertaining to an
            and providing support.                                                 organ of state be deemed necessary, the Centre
                                                                                   is of the view that this protection should not be
         29. AD CLAUSE 31.                                                         extended to commercial information pertaining
             This clause provides for the Minister to act as adjudica-             to private individuals and entities or parastatals
             tor in the event of a dispute arising between the agency              which may be in the possession of the State. Suf-




                                                                                                                                                      the protection of information bill
             and any organ of state. This provision offends against                ficient safeguards exist under PAIA and in terms
             the well established Rule of Law maxim that “nemo                     of the law of delict and the law of contract.
             potest esse simul actor et iudex” (no-one can be at
             once both suitor and judge) since the Executive respon-      32. The Centre submits that an integral part of an open and
             sible is being asked to determine a dispute between its          accountable democracy is that the media has access to
             agency and another organ of state. The Centre would              public records. Given the centrality of the media’s role
             propose that an independent adjudicator such as the              in the facilitation of an open and accountable demo-
             Minister of Justice and Constitutional Development, be           cracy, the Centre is of the view that at the very least,
             substituted for the Minister.                                    the defence of “public interest” should be available to
                                                                              the media. Moreover, the Centre is of the view that the
         30. AD CLAUSE 46(11):                                                extremely harsh penal penalties without the option of a
             The Centre is of the view that the insistence on a mini-         fine will inhibit any investigative journalism. The Centre
             mum of three judicial officers is overly cumbersome              would thus suggest that at minimum the option of a
             and will result in further over burdening the courts and         fine be included.
             in unnecessary delays. Invariably requests for informa-
             tion are, by their very nature, urgent. Any point taken in   33. The Centre would like to contribute constructively to
             limine, will require that the main matter be postponed           the enactment of this Bill. Should oral submissions be
             and that at least three judges (who could each be hear-          felt to be useful, please do not hesitate to call upon us. ●
             ing another matter) be found. In terms of the Supreme
             Court Act 12and the Rules of Court, the Judge Presi-
                                                                              11.
             dent of any division has the discretion to allocate three            Cod. Theod. 2.2.1
                                                                              12.
                                                                                  Act 59 of 1959
             judges to hear a matter, depending on its complexity.13          13.
                                                                                  A similar provision is contained in clauses 19(1)(a) and 19(1)(c)
             The Centre thus proposes that this clause be amended                 of the Superior courts Bill 2010




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                                    THE mEDIA APPEALS TRIBUNAL


                        THE MEDIA
                       Appeals Tribunal
                          and The
                       bATTlEfIElD
                          of Ideas
                                      THE ANC WAS INTENT ON PUSHINg
                     for the establishment of a Media Appeals Tribunal (MAT) in the run-up
                   to its National General Council (NGC) in September. The proposal has its
                        roots in a resolution adopted at the 2007 National Conference at
                     Polokwane on the establishment of a tribunal that would “balance the
                    right to freedom of expression, freedom of the media, with the right to
                                  equality, to privacy and human dignity for all.”

           The MAT would adjudicate public complaints against print   they were never elected”. He added that the media was
          media, “in terms of decisions and rulings made by the       not the only body which understood rights: “We at the
          existing self-regulatory institutions”. According to ANC    ANC, we believe we do. We fought for the rights.“
          spokesman Jackson Mthembu “there is no targeting of            Is the ANC right about the ineffectiveness of press self-
          newspapers. We will still use the same journalistic codes   regulation? The Organisation for Security and Cooperation
          (but) if you go against those codes, then we should im-     in Europe (OSCE) has produced a Guidebook on Media Self-
          pose some punitive measures (including imprisonment).”      Regulation that should be required reading for everyone
          Despite Mthembu’s use of the word “we” in his state-        participating in our own debate. According to the Guide-
          ment, the MAT would not be accountable to the ANC with      book “Media self-regulation is a joint endeavour by media
          its “firm views and bias” but to Parliament, which “would   professionals to set up voluntary guidelines and abide by
          guarantee the principles of independence, transparency,     them in a learning process open to the public. By doing so
          accountability and fairness”.                               the independent media accept their share of responsibility
              The ANC believes that the MAT is necessary because      for the quality of public discourse in the nation, while fully
          the Press’s own system of self-regulation has failed. Nu-   preserving their editorial autonomy in shaping it.”
          merous ANC and SACP leaders have supported the cam-            The OSCE warns that “time and again, the road to un-
          paign, including President Zuma, who says that the media    necessary legal interference (by the State) is paved with
          “need to be governed themselves because at times they       good will, and prompted by the public’s real need for stand-
          go overboard on the rights.” The President added that the   ards in journalism. Many undue limitations are intended to
          media claimed to be “ the watchdog of the people”, but “    “help” enhance ethics and quality, or “balance” freedom




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                “...there is no place for racial considerations
          when it comes to the freedom of the media. Everyone has
            the right to express their views - and to own media -
                             regardless of their race.”

         of the press against other important values, like state secu-    fensive, largely driven by the opposition and fractions in
         rity, social peace, or personal rights”. However “such laws      the mainstream media.” It states that “in our National
         tend to merely impose the tastes of the ruling parliamen-        Democratic Revolution, the media should contribute to
         tary majority.” Accordingly, most functioning democracies        the transformation of our country.” However, instead of
         practise some form of media self regulation - and hardly         supporting the ANC’s outlook and values, the mainstream
         any permit state regulation of the press.                        media’s ideological outlook was one of “neo-liberalism, a
             This does not mean that press self-regulation is above       weak and passive state, and over-emphasis on individual
         reproach. In 2007 the British House of Commons held              rights, market fundamentalism.”
         hearings on the persistent press harassment of Kate Mid-             The ANC also believes that transformation of the me-
         dleton - Prince William’s girlfriend; on News of the World       dia will assist it on the battlefield of ideas. It is calling for
         journalist Clive Goodman’s conviction for the illegal inter-     more representative ownership of the media and for the
         ception of communications; and on the widespread use by          introduction of a Media Charter. The idea is, no doubt,
         journalists of a private investigator who obtained personal      that media ownership and control should fall into line with
         data by illegal means.                                           the ANC’s ideology of racial demographic representivity.
             In considering the role of the British Press Complaints      However, there is no place for racial considerations when
         Commission the Parliamentary Committee reached a                 it comes to freedom of expression and freedom of the me-
         number of critical conclusions: It noted that the PCC did        dia. Everyone has the right to express their views - and to
         not command absolute confidence that it was fair; there          own media - regardless of their race. It is the market - and
         was debate about whether the PCC should be more willing          not the government - that should decide whether media
         to accept third-party complaints; and there were criticisms      products are acceptable or not.
         that the PCC applied its own press code with “far too light          According to the pre-NGC discussion paper, the ANC is
         a touch.”                                                        determined to “… take charge to ensure that (its “noble
             However, the Parliamentary Committee’s main finding          ideas”) dominate the national discourse” and that its voice




                                                                                                                                               the media appeals tribunal
         was unambiguous and is of central relevance to the South         “is heard above the rest.” That, in the final instance is what
         African debate. “We do not believe that there is a case          the Media Tribunal, the Protection of Information Bill and
         for a statutory regulator for the press, which would rep-        calls for media transformation are all about.
         resent a very dangerous interference with the freedom of             Those involved should think again: further prosecution
         the press. We continue to believe that statutory regulation      of the campaign against the media will do incalculable
         of the press is a hallmark of authoritarianism and risks un-     damage not only to South Africa, but to the ANC’s own
         dermining democracy. We recommend that self-regulation           image on the eve of its 100th anniversary. It will wipe out
         should be retained for the press, while recognising that it      the benefit South Africa derived from the World Cup; it will
         must be seen to be effective if calls for statutory interven-    tarnish our image as a constitutional democracy; it will cer-
         tion are to be resisted.”                                        tainly lead to divisive litigation; and it will seriously polarize
             The same considerations apply to South Africa where          our people.                                                      ●

         the press has accepted that its system of self-regulation
         needs to be strengthened.
             However, is the current media debate really about press
         fairness and accountability - or is it about political power?
         According to the ANC’s pre-NGC discussion papers the
         press is “a repository of immense ideological, economic,
         social and political power.” The ANC believes that “on the
         battlefield of ideas” it is faced with a major ideological of-




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                                    THE mEDIA APPEALS TRIBUNAL


                 Is media
           Self-REGulATION
                 Working?
                               “NOBODy ExPECTS THE SPANISH INqUISITION”
                         was the famous Monty Python line. By the same token nobody
                         expected a Media Inquisition in the form of the ANC’s proposed
                                            Media Appeals Tribunal.

              The ANC denies that it wants to interfere with the free-       Before 1994 the media was regulated by a Media Coun-
          dom of expression. However, it insists that freedom of         cil that the Press established in 1984 to ward off threats of
          expression should be balanced with “the right to equal-        government control. The Media Council was chaired by a
          ity, to privacy and human dignity for all”. The ANC char-      former Appeal Court Judge who was assisted by assessors
          ges that the press’s existing self-regulatory mechanism is     drawn from press and public panels. The Council could rep-
          “hopelessly inadequate.” “It is a body appointed by the        rimand the press; insist on apologies and corrections and
          media and made up of people from within the ranks of the       could levy fines up to R 10 000. After 1994, the Press re-
          media to judge itself”. It says that the only penalties that   placed the Media Council with its own much scaled-down
          the Ombudsman and Appeals Panel can impose, namely             version. In 1996 it established the Press Ombudsman and
          corrections, retractions and apologies, are “extremely in-     an Appeal Panel whose task it was to apply the Press’s
          sufficient”. Moreover, those who use the Ombudsman             own Code of Conduct.
          have to waive their right to sue - even though lengthy and         The Code of Conduct, if properly applied, should ensure
          expensive litigation is simply beyond the means of most        fair and responsible journalism. It requires the press to re-
          South Africans anyway. The ANC believes that aggrieved         port news “truthfully, accurately and fairly” and insists on
          citizens should instead have the right to approach an im-      exceptional care and consideration in matters involving the
          partial Media Appeals Tribunal that would be answerable        private lives and concerns of individuals, “bearing in mind
          to Parliament. The goal would be to expand democracy and       that the right to privacy may be overridden by a legitimate
          “to strengthen media freedom and accountability”.              public interest.”
              The question, then, is whether the existing press self-        The system was overhauled in 2007 and now compri-
          regulatory system is, in fact, working - or whether - as the   ses the South African Press Council, the Press Ombudsman
          ANC argues - some other process might be necessary?            and the Press Appeals Panel. Veteran journalist, Raymond



            “The ANC believes that aggrieved citizens should instead
             have the right to approach an impartial Media Appeals
               Tribunal that would be answerable to Parliament.
            The goal would be to expand democracy and ‘to strengthen
                      media freedom and accountability’.”


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                 “An analysis of ANC, government and local
           government complaints made to the Ombudsman over
          the past three years has revealed that 65% of rulings were
                         in favour of the complainants.”

         Louw chairs the Council which also includes five members       to strengthen the self-regulatory mechanism. We’ve never
         from the press and five members representing the public.       said it’s perfect.” The Press Council has accordingly deci-
         The Press Appeals Panel is chaired by retired Appeals Court    ded to appoint a team to review its constitution, the press
         Judge Ralph Zulman who is assisted by six press panelists      code and complaints procedures. The team will report back
         and five panelists from the public. The Ombudsman has          to the Council in November.
         a staff of four full-time employees, including Ombudsman           The self-regulation system could possibly be strength-
         Joe Thloloe and Deputy Ombudsman, Dr Johan Retief.             ened by making the Council and Panel more representa-
              By comparison, the British Press Complaints Com-          tive; by allowing third party complaints; by empowering it
         mission consists of a Board of 17 members, including           to impose fines; and by vastly increasing public awareness
         ten public representatives and seven senior editors. The       of the press code and the complaints procedure - possi-
         Board is supported by a secretariat comprising 13 full-time    bly by means of a standard notice in every newspaper and
         employees and is funded by the industry’s Press Board of       publication.
         Finance. The PCC deals with about 3,600 complaints each            It is far preferable that the media should take appropriate
         year of which about 400 are ultimately resolved through        steps to improve the enforcement of its own press code.
         conciliation.                                                  According to the Organisation for Security and Coopera-
             The South African Ombudsman handles only 150 com-          tion in Europe’s Handbook on Media Self-Regulation “the
         plaints per year - 95% of which are settled in the first and   road to unnecessary legal interference (by the State)” is
         second stages of a three-stage complaints process. Ami-        time and again “paved with good will, and prompted by the
         cable settlements can be reached in as little as a day or a    public’s real need for standards in journalism.” In remarks
         week. However, processes that are referred to the Press        that are extremely relevant to the South African debate, it
         Appeals Panel may take up to three months to resolve. The      adds that “many undue limitations are intended to ‘help’
         entire process is free and is, according to the Ombuds-        enhance ethics and quality, or ‘balance’ freedom of the
         man, completely transparent.                                   press against other important values, like state security,




                                                                                                                                          the media appeals tribunal
             According to Retief, the system is not controlled by the   social peace, or personal rights”. However, the OSCE con-
         press alone and is not biased. An analysis of ANC, govern-     cludes that “such laws tend to merely impose the tastes
         ment and local government complaints made to the Om-           of the ruling parliamentary majority.”
         budsman over the past three years has revealed that 65%            Everyone who is concerned about the indispensable
         of rulings were in favour of the complainants. Sanctions       role of freedom of expression in our democratic system
         imposed on newspapers included nine apologies, two cor-        should also consider the conclusion of 2007 British House
         rections and two reprimands. Furthermore, the ANC is           of Commons hearing into the efficacy of press self-reg-
         making increasing use of the Ombudsman – accounting            ulation: “We continue to believe that statutory regulation
         for 20% of all recent complaints.                              of the press is a hallmark of authoritarianism and risks un-
             Retief also denies that the Ombudsman is ‘toothless’,      dermining democracy. We recommend that self-regulation
         citing the embarrassment of a page 1 apology - which           should be retained for the press, while recognising that it
         would be the worst penalty that he could impose. Accor-        must be seen to be effective if calls for statutory interven-
         ding to Raymond Louw: “Nothing damages a newspaper             tion are to be resisted.”                                     ●

         more than a finding against its credibility and trustworthi-
         ness. If the public lose its trust in a newspaper in regards
         to its methods of operation and accuracy it can go out of
         business, thus enduring the ultimate sanction.”
             Nevertheless, SANEF chairperson Mondli Makhanya
         admits that the system could be improved: “… we want




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                                       THE BATTLEFIELD OF IDEAS


                                     fREEDOM
                                      Fighters
                                     NOT SINCE THE DAyS OF JOHN VORSTER
                    have liberal values been under such attack by government as they are
                  now. On the ‘battlefield of ideas’, the ANC has arrayed its forces against
                       “neo-liberalism’; against “a weak and passive state”; and against
                  “over-emphasis on individual rights (and) market fundamentalism.” It has
                  articulated its own position as ‘the developmental state, collective rights,
                          values of caring and community solidarity, and non sexism’.

          Blade Nzimande, the Secretary-General of the SACP, has              and most notably catastrophic levels of unemployment - to
          been in the vanguard of recent sallies against liberalism.          neo-liberal policies which it claims have been implemented
          On 27 September he warned that “we have a huge liberal              under the guise of the ANC’s GEAR programme.
          offensive against our democracy” and that “the print me-               The assault on liberalism has measurable consequences.
          dia is the biggest perpetrator of this liberal thinking.” It was    According to the latest ‘Economic Freedom of the World
          accordingly necessary to establish a Media Appeals Tribu-           Report’ South Africa has slumped from its position as 42nd
          nal “to protect socialism” (NB. The Minister’s remarks are          freest economy in the world in 2000 to the 82nd position in
          not only profoundly unconstitutional, they are also an ad-          2008. This places it in the survey’s second lowest quartile.
          mission that the MAT’s real purpose is political and not            Not only has the South African economy become less free
          the protection of the rights and dignity of individuals as its      in absolute terms, it has also been overtaken by competi-
          promoters claim.)                                                   tor countries that have embraced free markets and free
              Nzimande’s attack on the liberal media followed attacks         institutions.
          last year on universities in which he said that “we need               The Economic Freedom report meticulously measures
          to give higher education a revolutionary content, and not           the performance of 141 countries in 42 areas covered by
          a liberal content.” He also warned against “human rights            size of government; legal structure and property rights; ac-
          fundamentalism” and said that it - together with academic           cess to sound money; freedom to trade internationally; and
          freedom - were used by the ‘elite classes’ to undermine             the regulation of credit, labour and business. It indicates a
          the transformation of the higher education sector.                  clear correlation between economic freedom and desirable
              In its recently published ‘Growth Path to Full Employ-          social outcomes:
          ment’ Cosatu castigates the ‘myths of neo-liberalism’                  • People in the top quartile of economically free coun-
          which it identifies as ‘trade liberalisation, financial liberali-         tries have per capita incomes almost ten times higher
          sation, labour market deregulation, the limited role of the               than those of people in the bottom quartile.
          state, fiscal austerity, tight monetary policy and central             • The poorest ten per cent of people in the freest econo-
          bank independence’. It ascribes all the ills of the economy -             mies have incomes that were twice as high as the


                     “...South Africa has slumped from its position
                  as 42nd freest economy in the world in 2000 to the
                   82nd position in 2008. This places it in the survey’s
                                    lowest quartile.”

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               “Countries that limit intrusive regulation and
            promote economic freedom create environments in
         which entrepreneurs can generate wealth - to the manifest
             benefit of the exchequer and the general public.”

                average income in the least free countries.                     South Africa has done well wherever it has implement-
             • People in the freest economies can expect to live             ed policies based on freedom and pragmatism. The GEAR-
                almost twenty years longer than their counterparts in        based macro-economic policies - that are now so widely
                the least free quartile.                                     denigrated - helped to ensure 17 years of uninterrupted
             • They report a life satisfaction of 7.5 out of 10 compared     economic growth until the global downturn in 2008. They
                with life satisfaction of only 4.7 in the lowest quartile.   also enabled the ANC government to achieve singular suc-
             • They have an average Human Development Index of               cess in fighting inflation and in slashing our national debt
                .898 compared with the average HDI index of the least        from 47% of GDP in 1994 to only 22% in 2008. We have
                free quartile of only .541. The difference between           done badly wherever we have followed restrictive ideologi-
                these statistics is the difference between well-being        cal approaches - particularly in the labour market; in land
                and misery in terms of income, health and education.         reform; and in the deployment of under-qualified cadres to
             • Needless to say, they also enjoy far greater political        key posts in government departments, municipalities and
                and civil freedoms than their counterparts in the least      parastatals.
                free economies.                                                 South Africa is sliding in virtually all the major interna-
         Freedom works. The ideological approach of its critics does         tional performance indicators: since 1995 we have slipped
         not. Countries that have small, effective governments do            from 89th position in the HDI rankings to 129th position
         better than those with sprawling bureaucracies. Govern-             last year; and in the past two years we have dropped from
         ment in South Africa is growing rapidly - but it is not be-         45th position to 54th position in terms of our global com-
         coming more effective: government expenditure as a per-             petitiveness. We cannot ignore these objective assess-
         centage of GDP has climbed from 26.3% in 2000/01 to                 ments of our performance and of our prospects for future
         32.3% this year. The average salaries of public servants            success in a highly competitive world. A major cause of
         are now 50% higher than those in the private sector - de-           this slippage may be found in the intensifying assault on
         spite their declining ability to deliver effective services.        liberal values and economic freedom on the ‘battlefield of
         One might also ask how their recent strike promoted “the            ideas’. John Vorster would have approved.                   ●

         values of caring and collective solidarity”.
             Countries that limit intrusive regulation and promote
         economic freedom create environments in which entre-                                                                                 the battlefield of ideas
         preneurs can generate wealth - to the manifest benefit of
         the exchequer and the general public. Countries that ac-
         cept the key role of the market invariably offer consumers
         a far greater choice of products of higher quality and at
         lower prices than economies that oppose “market funda-
         mentalism.”
             On the battlefield of ideas those who are fighting for
         liberal values can count on the support of the Constitution.
         It does not recognise ‘collective rights’: all rights devolve
         on individuals (‘everyone’ or ‘persons’); there is no idea
         that individual rights can ever be ‘over-emphasised’. On
         the contrary, the Constitution regards these rights as the
         ‘cornerstone of democracy in South Africa’ and calls on the
         state - not to downplay them - but to ‘protect, promote and
         fulfill’ them.




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                                              RESOURCE SECTION


                       The Protection
                     of Information Bill
                                          A full copy of the Bill can be found here:
                                    www.info.gov.za/view/DownloadFileAction?id=118894

              In this section you will find all the important resource
               material related to the debate surrounding the self-
            regulation of the media and the Protection of Information
              Bill - including summaries on the documents and links
                       to where it can be found on the internet.
               We encourage you to distribute this information to
                    all interested individuals and organisations.

                     Relevant sections in the Constitution
          1. Republic of South Africa                                    (b) incitement of imminent violence; or
          The Republic of South Africa is one, sovereign, demo-          (c) advocacy of hatred that is based on race, ethnicity,
          cratic state founded on the following values:                      gender or religion, and that constitutes incitement
          (a) Human dignity, the achievement of equality and the ad-         to cause harm.
              vancement of human rights and freedoms.
          (b) Non-racialism and non-sexism.                              36. Limitation of rights
          (c) Supremacy of the constitution and the rule of law.         (1) The rights in the Bill of Rights may be limited only
          (d) Universal adult suffrage, a national common voters roll,        in terms of law of general application to the extent
              regular elections and a multi-party system of democrat-         that the limitation is reasonable and justifiable in an
              ic government, to ensure accountability, responsive-            open and democratic society based on human dig-
              ness and openness.                                              nity, equality and freedom, taking into account all
                                                                              relevant factors, including -
          16. Freedom of expression                                      (a) the nature of the right;
          (1) Everyone has the right to freedom of expression, which     (b) the importance of the purpose of the limitation;
              includes -                                                 (c) the nature and extent of the limitation;
          (a) freedom of the press and other media;                      (d) the relation between the limitation and its purpose;
          (b) freedom to receive or impart information or ideas;              and
          (c) freedom of artistic creativity; and                        (e) less restrictive means to achieve the purpose.
          (d) academic freedom and freedom of scientific research.       (2) Except as provided in subsection (1) or in any other
          (2) The right in subsection (1) does not extend to-                 provision of the Constitution, no law may limit any
          (a) propaganda for war;                                             right entrenched in the Bill of Rights.




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                  The Right to Know
                    CAMPAIGN
                                            THE RIgHT TO KNOW CAMPAIgN
                          is “concerned that the Protection of Information Bill - also
                         known as the Secrecy Bill - currently before Parliament will
                      fundamentally undermine hard-won constitutional rights including
                     access to information and freedom of expression.” It is an umbrella
                         campaign representing a broad front of civil society groups -
                                including the Centre for Constitutional Rights.

         The Campaign’s statement “...characterises the Protection           The Campaign is currently coordinated by working groups
         of Information Bill as fundamentally undermining the struggle       in Gauteng and Cape Town, and all organisations partici-
         for whistleblower protection and access to information and          pate on a voluntary basis. The Right to Know Campaign’s
         as reminiscent of our apartheid past. The statement calls for       website contains all the relevant information pertaining
         a redrafting of the Bill to comply with the constitutional values   to this initiative, including events in this regards, as well
         of access to information and freedom of expression.” Some           as a resource section which includes a copy of the Bill,
         of the Campaign’s main concerns are listed as follows:              as well an explanation of the Bill “in plain language”. Any
             • Any state agency, government department, even a               organisation, group or individual can support this cause
               parastatal and your local municipality, can classify          by signing up on the Campaign’s website, which can be
               public information as secret.                                 found at www.r2k.org.za . The National Coordinator, Mark
             • Anything and everything can potentially be classified         Weinberg, can be contacted at mark@amandla.org.za . You
               as secret at official discretion if it is in the ‘national    can also join the Campaign’s groups on Facebook (Right 2
               interest’. Even ordinary information relating to service      Know Campaign) and Twitter (r2kcampaign).
               delivery can become secret.
             • Commercial information can be made secret, making
               it very difficult to hold business and government to
               account for inefficiency and corruption.
             • Anyone involved in the ‘unauthorised’ handling and
               disclosure of classified information can be prosecu-
               ted; not just the state official who leaks information
               as is the case in other democracies.
                                                                                                                                             resource section


             • The disclosure even of some information which is not
               formally classified can land citizens in jail. This will
               lead to self-censorship and have a chilling effect on
               free speech.
             • Whistleblowers and journalists could face more time
               in prison than officials who deliberately conceal public
               information that should be disclosed.
             • A complete veil is drawn over the workings of the
               intelligence services. It will prevent public scrutiny of
               our spies should they abuse their power or breach hu-
               man rights.




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                                                                DECLARATION:
                                              Let The Truth Be Told
          ■ STOP THE SECRECY BILL!                                               • Whistleblowers and journalists could face more time in
                                                                                   prison than officials who deliberately conceal public in-
          A responsive and accountable democracy that can meet the                 formation that should be disclosed.
          basic needs of our people is built upon transparency and the           • A complete veil is drawn over the workings of the intel-
          free flow of information. The gains of South Africans’ strug-            ligence services. It will prevent public scrutiny of our spies
          gle for freedom are threatened by the Protection of Informa-             should they abuse their power or breach human rights.
          tion Bill (the Secrecy Bill) currently before Parliament. We
          accept the need to replace apartheid-era secrecy legislation.
          However, this Bill extends the veil of secrecy in a manner             ■ WHO WILL GUARD THE GUARDIANS?
          reminiscent of that same apartheid past.
             This Bill fundamentally undermines the struggle for                 • Officials do not need to provide reason for making infor-
          whistleblower protection and access to information. It is                mation secret
          one of a number of proposed measures which could have                  • There is no independent oversight mechanism to prevent
          the combined effect of fundamentally undermining the                     information in the public interest from being made secret.
          right to access information and the freedom of expression              • The Minister of State Security, whose business is
          enshrined in the Constitution.                                           secrecy, becomes the arbiter of what information across
                                                                                   all of government must remain secret or may be dis-
                                                                                   closed to the public.
          ■ OUR CONCERNS:                                                        • Even the leaking of secret information in the public inter-
                                                                                   est is criminalised.
          The Bill will create a society of secrets                              • Unusually severe penalties of up to 25 years in prison will
          • Any state agency, government department, even a par-                   silence whistleblowers, civil society and journalists do-
            astatal and your local municipality, can classify public in-           ing their job.
            formation as secret.                                                 • All these factors will limit public scrutiny of business and
          • Anything and everything can potentially be classified as               government, whether through Parliament or journalists.
            secret at official discretion if it is in the ‘national interest’.     Accountability will be curtailed and service delivery to
            Even ordinary information relating to service delivery can             the people will be undermined.
            become secret.
          • Commercial information can be made secret, making it
            very difficult to hold business and government to ac-                ■ OUR DEmANDS:
            count for inefficiency and corruption.
          • Anyone involved in the ‘unauthorised’ handling and dis-              The Constitution demands accountable, open and respon-
            closure of classified information can be prosecuted; not             sive government, realised among other things through
            just the state official who leaks information as is the case         freedom of expression and access to information. Our
            in other democracies.                                                elected representatives are bound by these Constitutional
          • The disclosure even of some information which is not                 values and any legislation they pass must comply.
            formally classified can land citizens in jail. This will lead to
            self-censorship and have a chilling effect on free speech.           We demand that the Protection of Information Bill -




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         the Secrecy Bill - must reflect the following:                   9,000 individuals now support the Campaign.
         • Limit secrecy to core state bodies in the security sector          The statement characterises the Protection of Informa-
           such as the police, defence and intelligence agencies.         tion Bill as fundamentally undermining the struggle for
         • Limit secrecy to strictly defined national security mat-       whistleblower protection and access to information and as
           ters and no more. Officials must give reasons for making       reminiscent of our apartheid past. The statement calls for
           information secret.                                            a redrafting of the Bill to comply with the constitutional val-
         • Exclude commercial information from this Bill.                 ues of access to information and freedom of expression.
         • Do not exempt the intelligence agencies from public                The 350 civil society organisations endorsing the state-
           scrutiny.                                                      ment include Afesis-Corplan, the Alternative Information
         • Do not apply penalties for unauthorised disclosure to so-      Development Centre, Amnesty International, Black Sash,
           ciety at large, only those responsible for keeping secrets.    Ceasefire Campaign, CIVICUS, Democracy Development
         • An independent body appointed by Parliament, and not           Programme, Diakonia Council of Churches, Earthlife Africa,
           the Minister of Intelligence, should be the arbiter of deci-   Freedom of Expression Institute, Gay & Lesbian Network,
           sions about what may be made secret.                           Idasa, Institute for Security Studies, Open Democracy
         • Do not criminalise the legitimate disclosure of secrets in     Advice Centre, M&G Centre for Investigative Journalism
           the public interest.                                           (amaBhungane), National Welfare Forum, Palestine Sup-
                                                                          port Committee, Professional Journalists’ Association,
                                                                          Section27, South African History Archives, and the South
         ■ SIGN ON, CIRCULATE,                                            African National Editors Forum as well as various social
           EDUCATE, ACTIVATE!                                             movements including Equal Education, Social Justice Coa-
                                                                          lition, Social Movements Indaba, Treatment Action Cam-
         Who signs on:                                                    paign, and the Unemployed People’s Movement.
         • Civil Society Organisations (South African based)                  Over 9000 individuals have also endorsed the Statement,
         • International friends (organisations) who share                including Archbishop Desmond Tutu, Nadine Gordimer,
           our concerns                                                   Prof Kader Asmal, Zakes Mda, Dr Max Price, Prof Jonathan
         • Individuals                                                    Jansen, Zackie Achmat, Prof. Njabulo Ndebele, Pieter-Dirk
                                                                          Uys, Mary Burton, Mazibuko K Jara, Andrew Feinstein, Ri-
                                                                          chard Spoor, André Brink, Terry Bell, Laurie Nathan, Pierre
         ■ WHO ARE WE?                                                    de Vos, Max Du Preez, Paul Graham, Pippa Green, Prof
                                                                          Hoosen Coovadia and Breyten Breytenbach.
         The Right2Know (R2K) Campaign is concerned that the                  A full list of endorsing organizations and individuals is
         Protection of Information Bill - also known as the Secrecy       available on the website.
         Bill - currently before Parliament will fundamentally under-
         mine hard-won constitutional rights including access to in-
         formation and freedom of expression.                             ■ HOW IS THE CAmPAIGN
             R2K is an umbrella campaign representing a broad front         STRUCTURED?
         of civil society groups. We believe a responsive and ac-
         countable democracy able to meet the basic needs of our          At present the campaign is co-ordinated by working groups
         people is built on transparency and the free flow of infor-      on Cape Town and Gauteng. A working group is in the
         mation. The R2K campaign statement - "Let the truth be           process of being established in Durban. All organisations
                                                                                                                                            resource section


         told. Stop the Secrecy Bill!" - was drafted following parlia-    co-operate on a voluntary basis. For information on how to
         mentary hearings on the Bill in July 2010 and demands that       contact the campaign please send an e-mail to Hopolang
         secrecy legislation must comply with constitutional values.      Selebalo. To join the campaign mailing list and receive up-
         It is based upon detailed submissions made to Parliament         dates send an e-mail to Mark Weinberg.
         by civil society groups.
             Support for the Right2Know Campaign has snow-
         balled since our initial launch in Cape Towns                    ■ WHO mAINTAINS THIS WEBSITE?
         St. georges Cathedral on August 31 which had the
         support of 200 organisations and 400 individuals.                This website was created and is maintained by the Insti-
         Two weeks later almost 350 civil society organi-                 tute for Security Studies (ISS), one of the 350 organisa-
         sations (300 of which are based in South Africa) and             tions supporting the campaign.




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                                       mINISTERIAL REVIEW COmmISSION
                                              ON INTELLIGENCE:
                                       memorandum on the
                                    Protection of Information Bill
          THE AIM OF THE Commission’s review is “to strengthen              sound decision-making by government officials.
          mechanisms of control of the civilian intelligence structures        “A third major problem is that the Bill gives the National
          in order to ensure full compliance and alignment with the         Intelligence Agency (NIA) sole responsibility for advising,
          Constitution, constitutional principles and the rule of law,      supporting and monitoring organs of state in the implemen-
          and particularly to minimise the potential for illegal conduct    tation of the protection of information rules. NIA can play a
          and abuse of power.”                                              valuable role because it specialises in protecting sensitive
              The memorandum summarises the positive features of            information. Precisely for this reason, however, it is not ori-
          the Bill and outlines the Commission’s main concerns and          ented towards promoting the constitutional right of access
          recommendations. The Commission points out that the Bill          to information. We therefore recommend that the Bill also
          recognises “the importance of transparency and the free           provide for the involvement of the Human Rights Commis-
          flow of information...”, but also the fact that “the Bill’s ap-   sion in the implementation of the new law.
          proach to ‘secrecy in the national interest’ is reminiscent of
          apartheid-era legislation and is in conflict with the constitu-   2. Constitutional and governance principles
          tional right of access to information.”                           “The point of departure for any discussion on draft legis-
              In addition to this, the Commission also indentifies two      lation dealing with protection of information must be the
          other major problems with the Bill, namely “that the criteria     Constitution, which is supreme law and the foundation of
          and principles governing the disclosure and non-disclosure        our democratic order.
          of information are too complicated and will be extremely              “Section 32(1) of the Constitution contains the follow-
          difficult to apply in practice” and “that the Bill gives the      ing emphatic assertion on access to information: everyone
          National Intelligence Agency (NIA) sole responsibility for        has the right of access to a) any information held by the
          advising, supporting and monitoring organs of state in the        state; and b) any information that is held by another person
          implementation of the protection of information rules”.           and that is required for the exercise or protection of any
                                                                            rights. Section 32(2) provides that national legislation must
                                                                            be enacted to give effect to this right and may provide for
          ■ EXTRACTS FROm THE mEmORAN-                                      reasonable measures to alleviate the administrative and fi-
            DUm OF THE mINISTERIAL REVIEW                                   nancial burden on the state. The relevant legislation is the
            COmmISSION ON THE PROTECTION                                    Promotion of Access to Information Act No. 2 of 2000.
            OF INFORmATION BILL                                                 “The Promotion of Access to Information Act seeks to
                                                                            foster a culture of transparency and accountability in public
          “In summary, the Bill recognises the importance of trans-         and private bodies by giving effect to the right of access to
          parency and the free flow of information and has many             information. The Act applies to the exclusion of any provision
          provisions that aim to prevent inappropriate and exces-           of other legislation that a) prohibits or restricts the disclosure
          sive restrictions on access to information. Yet the Bill also     of a record of a public or private body; and b) is materially
          has a number of provisions that are likely to encourage           inconsistent with an object or provision of the Act.
          secrecy. In particular, the Bill’s approach to ‘secrecy in
          the national interest’ is reminiscent of apartheid-era leg-       “Moreover, the right of access to information may only be
          islation and is in conflict with the constitutional right of      limited in terms of the constitutional provisions on limita-
          access to information.                                            tion of rights. Section 36(1) of the Constitution provides
              “A second major problem with the Bill is that the criteria    the following in this regard:
          and principles governing the disclosure and non-disclosure              The rights in the Bill of Rights may be limited only
          of information are too complicated and will be extreme-                 in terms of law of general application to the extent
          ly difficult to apply in practice. The principles and criteria          that the limitation is reasonable and justifiable in an
          should be simplified in order to facilitate consistent and              open and democratic society based on human dig-




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               nity, equality and freedom, taking into account all                 lic and its people”;
               relevant factors, including a) the nature of the right;           • it is “concerned with or applicable to matters im-
               b) the importance of the purpose of the limitation; c)              portant to the nation”;
               the nature and extent of the limitation; d) the relation          • it “includes all matters relating to the advancement
               between the limitation and its purpose; and e) less                 of the public good”; and
               restrictive means to achieve the purpose.                         • it includes “all matters relating to the protection
                                                                                   and preservation of all things owned or maintained
         “In addition to providing for the right of access to infor-               for the public by the State”.
         mation, the Constitution emphasises the principles of
         transparency, openness and accountability as fundamental          “The national interest also encompasses “the survival and
         tenets of governance. The right of access to information          security of the state and the people of South Africa” and
         lies at the heart of transparent governance and provides a        “the pursuit of justice, democracy, economic growth, free
         basis for democratic accountability and an open and free          trade, a stable monetary system and sound international
         society.                                                          relations” (section 15(2)).
             “The right of access to information also serves to ad-
         vance human rights. Parliament enacted the Promotion of           “There are six problems with this overly broad definition of
         Access to Information Act in order to “actively promote a         the ‘national interest of the Republic’:
         society in which the people of South Africa have effective              • The definition will be extremely difficult to apply
         access to information to enable them to more fully exer-                  in practice. In all organs of state, government off-
         cise and protect all of their rights”. Conversely, restrictions           icials will have to decide whether the disclosure
         on access to information can undermine human rights.                      of particular information might endanger ‘any
         According to the Promotion of Access to Information Act,                  matter relating to the advancement of the public
         “the system of government in South Africa before 27 April                 good’ or ‘any thing of benefit to the Republic and
         1994, amongst others, resulted in a secretive and unre-                   its people’. These phrases are capable of many
         sponsive culture in public and private bodies which often                 interpretations and it is therefore inevitable that
         led to an abuse of power and human rights violations”.                    there will be significant inconsistencies between
             “There are legitimate grounds for protecting certain in-              the classifications made by different officials.
         formation from public disclosure. Such information might                • Because the definition of the ‘national interest’ is
         relate, for example, to sensitive diplomatic activities; to as-           so broad, it could lead to a chronic over-classifica-
         pects of military, police and intelligence operations; and to             tion of state information. The overly broad defini-
         the private medical and financial records of individuals. Nev-            tion and an over-classification of information are in-
         ertheless, the protection of information must be mindful                  consistent with a democratic dispensation and the
         of the dangers inherent in secrecy; it must be exceptional                Constitution’s emphasis on access to information.
         and not routine; it must take place according to criteria and             Even if the disclosure of certain state information
         rules approved by Parliament; and it must be consistent                   does endanger some aspect of the national inter-
         with the constitutional provisions outlined above.”...                    est, from a constitutional perspective it might often
                                                                                   be the case that non-disclosure poses a greater
         7. Sensitive information and the national interest                        danger to the national interest.
         “Sections 14 and 15 are the most problematic sections                   • Sections 14 and 15 flow from the belief that
         of the Bill. They provide so general and sweeping a basis                 “secrecy exists to protect the national interest”
                                                                                                                                            resource section


         for non-disclosure of information that they are reminiscent               (section 22(1)(a)). This is constitutionally unsound.
         of apartheid-era secrecy legislation and are in conflict with             Since the ‘national interest’ includes openness, ac-
         the constitutional right of access to information.                        countability and the pursuit of democracy, as sta-
            “Section 14 states that “sensitive information is infor-               ted in section 15, it is not secrecy but rather trans-
         mation which must be protected from disclosure in order                   parency and access to information that protect the
         to prevent the national interest of the Republic from being               national interest.
         endangered”.                                                            • Sections 14 and 15 are inconsistent with the
                                                                                   “General principles of state information” contained
         Section 15(1) defines the ‘national interest of the Republic’             in section 7 of the Bill. These principles emphasise
         so broadly that the term encompasses almost everything:                   transparency, access to information and minimal
               • it “includes all those things of benefit to the Repub-            restrictions on the flow of information.




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                • Section 14 is not consistent with section 20 of the        on the development of education material and running
                  Bill, which deals with the actual classification of        of training and awareness programmes. NIA must report
                  information. Whereas section 14 provides that              annually to Parliament on the monitoring it carries out in
                  sensitive information must be protected from dis-          terms of the Act (section 58(3)).
                  closure in order to prevent the national interest of           “Given its mandate and expertise, NIA can provide use-
                  the Republic from being endangered, section 20             ful technical and other advice to government officials in re-
                  provides for classification levels and makes no ref-       lation to the protection of sensitive information. However,
                  erence whatsoever to the ‘national interest of the         it would be inappropriate for NIA to be overly involved or
                  Republic’.                                                 solely involved in advising organs of state on whether or
                • The term “endanger” is too vague. By contrast, the         not information should be classified. Precisely because
                  Bill elsewhere uses the clearer and more precise           one of NIA’s major functions is the protection of informa-
                  term of “identifiable damage” (section 27(1)(b)),          tion, the Agency is not oriented towards the promotion of
                  which is defined as “significant and demonstrable          access to information. As required by the Constitution and
                  harm” (section 1). This kind of clarity and precision      the Bill, this is the orientation that should guide decision-
                  is necessary if government officials are to make           making on classification of information.
                  sound decisions when deciding whether or not to                “The Bill should therefore provide for the involvement
                  classify information.                                      of the Human Rights Commission in the implementation
                                                                             of the Act. The Commission’s constitutional functions in-
          “In summary, sections 14 and 15 are inconsistent with the          clude promoting respect for human rights and a culture of
          emphasis on access to information that appears elsewhere           human rights; promoting the protection, development and
          in the Bill and that is enshrined in the Constitution.             attainment of human rights; and monitoring and assessing
              “There appears to be no good reason to retain sections         the observance of human rights in South Africa (section
          14 and 15 on the ‘national interest’. Section 20 of the Bill       184(1) of the Constitution). The Commission has a number
          provides criteria for classifying information as ‘confidential’,   of important functions in relation to the promotion and im-
          ‘secret’ or ‘top secret’, and it does so without referring to      plementation of the Promotion of Access to Information
          the ‘national interest’. There is consequently no need for         Act of 2000.
          the Bill to include the imprecise catch-all notion of the ‘na-         “Recommendation 19: The Bill should state that the Hu-
          tional interest’.                                                  man Rights Commission will provide advisory and training
              “Recommendation 6: Sections 14 and 15, and all other           support to organs of state in relation to the implementation
          references in the Bill to the ‘national interest’, should be       of the Act, play a monitoring role and report annually to
          deleted. Alternatively, the term should be defined and             Parliament in this regard.
          used in a manner that is consistent with the constitutional
          right of access to information. “…                                 The memorandum is available here:
                                                                             www.pmg.org.za/files/docs/100727memo.doc
          18. Responsibilities of NIA
          “Section 42 provides that NIA will be responsible for moni-
          toring the national protection information policies and pro-
          grammes carried out by organs of state. NIA will conduct
          on-site inspections and reviews for the purpose of moni-
          toring the protection of information programmes. It will
          also provide expert support and advice to organs of state
          on the classification and declassification of information; on
          requests to review the classification of information; and


                                           “The Bill should therefore
                                        provide for the involvement of
                                    the Human Rights Commission in the
                                       implementation of the Act.”

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                             ANC National General Council
                               Discussion on the media
         THE 51ST NATIONAL Conference in Stellenbosch “pas-               ■ EXCERPTS FROm ANC NATIONAL
         sed a comprehensive and detailed resolution on Commu-              GENERAL COUNCIL DISCUSSION
         nications and the 52nd National Conference in Polokwane            ON THE mEDIA (- WITH EmPHASIS
         reaffirmed these resolutions on media transformation but           ADDED).
         expressed concern at the slow pace of implementation.”
            This document, entitled “Media Transformation, Ow-            “46. As instruments of transformation, information and
         nership and Diversity”, discusses issues such as the             communication networks provide essential platforms for
         current state of the media; ownership and control of the         debate, information and education around issues shaping
         media; nature of the challenges in this regard; “media free-     the kind of society we are, and the kind of society we wish
         dom in perspective”; recommendations and processing of           to become.
         the congress resolutions on the media appeals tribunal;
         establishment of a Media Charter; media diversity; and the       “47. The transformation of the information and commu-
         battle of ideas.                                                 nication sector occupies a special place in the changing
            Amongst the observations made in the memorandum is            milieu of the socio-political landscape, since it is a key of
         the fact that, even though progress has been made with the       reform and revolution in the broader society.
         engagement of the media, “...much still needs to be done
         as some fractions of the media continue to adopt an anti-        “50. Our objectives therefore are to vigorously com-
         transformation, anti-development and anti-ANC stance.”           municate the ANC’s outlook and values (developmen-
         Whilst recognising the need for the freedom of the media         tal state, collective rights, values of caring and sharing
         and the importance of the right to freedom of expression         community, solidarity, ubuntu, non sexism, working
         throughout the document, the memorandum also states              together) versus the current mainstream media’s ide-
         that a “[c]ursory scan on the print media reveals an astonish-   ological outlook (neo-liberalism, a weak and passive
         ing degree of dishonesty, lack of professional integrity and     state, and overemphasis on individual rights, market
         lack of independence. Editorials distancing the paper from       fundamentalism, etc.)
         these acts and apologies which are never given due promi-
         nence and mostly which has to be forced through the press        “51. There is no question that the media, as an institu-
         ombudsman are not sufficient in dealing with this ill.”          tion deserves and should be afforded the space to flourish
            The objective is “to vigorously communicate the ANC’s         as a critical platform for freedom of expression. The ANC
         outlook and values (developmental state, collective rights,      has always fought for media freedom which it believes is
         values of caring and sharing community, solidarity, ubuntu,      a cornerstone for any democracy to flourish. All of us have
         non sexism, working together) versus the current main-           a responsibility to defend media freedom and editorial in-
         stream media’s ideological outlook (neo-liberalism, a weak       dependence from any form of compulsion, be it political,
         and passive state, and overemphasis on individual rights,        economic or commercial.
         market fundamentalism, etc.)”. In paragraph 84 of the
         document, it is unequivocally stated that “[t]he question of     “52. However, independence from such pressures does
                                                                                                                                          resource section


         ‘self-regulation’ by the media and the necessity for an inde-    not presume that journalists are unique human beings with
         pendent ‘media tribunal’ is a matter that should be brought      unique journalistic genes and genealogy. They are impact-
         back onto the agenda!”                                           ed upon by the environment within which they operate, by


          “Amongst the observations made in the memorandum is
          the fact that, ‘...much still needs to be done as some factions
            of the media continue to adopt an anti-transformation,
                  anti-development and anti-ANC stance’.”

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          the circumstances that spawn them.                                 these acts and apologies which are never given due promi-
                                                                             nence and mostly which has to be forced through the press
          “53. The media is a contested terrain and therefore not            ombudsman are not sufficient in dealing with this ill.
          neutral, but reflects the ideological battles and power
          relations based on race, class and gender in our socie-            “59. As South Africans we know the full meaning of un-
          ty. It cannot claim that its role is merely to reflect interests   regulated power and unbridled capitalism of the barons
          - rather it helps to shape those interests. In other words,        experienced by other societies through time. The abuse
          print and electronic journalists are not passive transmitters      of positions of power, authority and public trust to pro-
          - a clean slate - on whom events imprint themselves.               mote narrow, selfish interests and political agendas in-
                                                                             imical to our democracy. This points to the fact that the
          “54. The media are not merely reflective of what read-             problem of w hat is called ‘brow n envelope’ journalism.
          ers, viewers and listeners want. They do have values and           This type of rot is a much more serious problem than the
          choices which help to shape social preferences. Despite            media is willing to admit.
          the media’s limited direct reach, they occupy an impor-
          tant position to facilitate or to serve as a break on social       “60. This phenomenon may run even deeper that meets
          transformation.                                                    the eye is what has now become like permanent briefing
                                                                             sessions between faceless leaders within the ranks of our
          “55. It would be to relegate the media to a status of              Alliance and some journalists about discussions taking place
          social irrelevance to demand that journalists should               in confidential meetings. These relationships are probably
          have absolute freedom - only the inconsequential in                more than just ordinary media sources inside our organiza-
          social processes have a semblance of absolute free-                tions, but possibly involve payment arrangements.
          dom. Media as an institution is not a victim waiting to
          be abused. It is a repository of immense ideological,              “61. The tendency of dismissing any criticism of the media
          economic , social and political power.                             as an attack on press freedom results in the media behav-
                                                                             ing like a protection racket and leaves no space for intro-
          “56. The ANC holds that in our National Democratic                 spection. For its own credibility, and in order to be at
          Revolution (NDR), the media should contribute to the               the forefront of determining the agenda for change and
          transformation of our country. Building social cohesion            not against change, we have a responsibility to assist
          and promoting values of a caring society are an essen-             the media need to shape up.
          tial part of the battle of ideas and must underpin and
          inform the manner in which the media operates. The                     In our situation, these principles are found in the Con-
          accountability and fairness of reporting are central to                stitution and Bill of Rights, particularly freedom of ex-
          the objective assessment of the gains of the NDR.                      pression and of the media. One can also assert without
                                                                                 fear of contradiction that, in actual practice, a defining
          “57. The ANC is of the view that the media needs to                    texture of our democracy has been to allow the creati-
          contribute towards the building of a new society and                   vity and talent of writers and producers free reign. Yet,
          be accountable for its actions. Transformation in the me-              we have to accept that, as with any rights, there are
          dia needs to target the entire value chain and investigate             corresponding responsibilities and limits. Without
          anti-competitive behaviour if any.                                     these, anarchy would be the order of the day.

          “58. Cursory scan on the print media reveals an astonish-          64. However, positing media freedom only in constitutional
          ing degree of dishonesty, lack of professional integrity and       and legal terms is inadequate. We need to examine other,
          lack of independence. Editorials distancing the paper from         and perhaps more fundamental, expressions of media free-


                       “The media is a contested terrain and therefore
                          not neutral, but reflects the ideological
                        battles and power relations based on race,
                              class and gender in our society.”


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         dom. One of these is the issue of ownership and control.          via public authorities, which will often feed into but is not
                                                                           necessary connected to Checked accountability, which
         65. There can be no full realisation of media freedom in a sit-   means to be accountable in a sense of being liable to sanc-
         uation of growing conglomeration of ownership and homog-          tion if found to have acted in breach of some requirement
         enisation of content. One consequence of such conglom-            or expectation attaching to the exercise of power.
         eration is that newsrooms are being cut down; research
         capacity is being decimated; and lifting from the wires as        93. Many who find themselves “in the news” are unhappy
         distinct from real investigative work is becoming the norm.       about the way their story has been presented or the way
                                                                           journalists have obtained information. Many laws restrict
         66. There is no doubt that the freedom of expression is           what can be published but not the behaviour of journalists,
         in the self-interest of all those who believe in democracy.       and there are few legal remedies for inaccurate reporting.
         It is quite true that there can be a temptation, especially
         in political office, to constrain such freedom of expression      94. Legal aid is not available for libel cases, which are
         and media freedom in particular; but in our society we can        expensive. There is no statutory regulation of the press.
         say without fear of contradiction that most of those who          Instead there is an entirely voluntary system which does
         believe in democracy (led by the ANC) know that there can         not have the force of law. There continue to be a need to
         be no real transformation without freedom of expression           strengthen self-regulation by the press.
         and media freedom.
                                                                           95. In order for a complaint to be accepted by the Press
         67. Freedom of expression needs to be defended but                Ombudsman, the aggrieved party has to agree to waive his
         freedom of expression can also be a refuge for jour-              or her constitutional right to take the issue to the courts if he
         nalist scoundrels, to hide mediocrity and glorify truly           or she disagrees with the self-regulatory system’s verdict.
         unprofessional conduct. Freedom of expression means
         that there should be objective reporting and analysis             96. This situation is untenable. There is a need to strength-
         which is not coloured by prejudice and self interest.             en, complement and support the current self-regulatory
                                                                           institutions (Press Ombudsman) in the public interest. As a
         68. Freedom of expression means that we should all try to         profession media can establish its own mechanism to deal
         ensure diversity: diversity of content, diversity of sources      with its ethical issues and to regulate conducts and some
         of information, diversity of ownership and diversity of out-      internally inherent conflicts.
         look and responses in our advertising industry. There is no
         other option media has to be accountable. Media account-          97. However, this is limited and is not sufficient to deal
         ability relates to two related but distinct ideas, namely:        with and address external manifested conflicts between
         structured and checked accountability.                            the affected party and the aggressor which media often is.
            • Structured - in such a w ay as to maximise its potential     A balance has to be found which is fair and just, and which
               benefits while minimising the risk of arbitrariness via a   is in the interest of all and not just the media.
               system of principles indicative of the manner in which
               it will be exercised.                                       98. The mere fact that the press ombudsman is from the
            • Checked - via both internal review procedures and            media ranks, a former journalist, and is not an independ-
               external scrutiny by independent bodies such as the         ent person who looks at the media from the layman’s per-
               courts.                                                     spective poses an inherent bias towards the media with all
                                                                                                                                               resource section


                                                                           interpretations favourable to the institution and the other
         92. Structured accountability means a requirement to give         party just have to understand and accept the media way
         an account of one’s action, either directly to the public or      which is grossly unfair and unjust.


                   “Freedom of expression needs to be defended
                 but freedom of expression can also be a refuge for
                     journalist scoundrels, to hide mediocrity and
                        glorify truly unprofessional conduct.”

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                             “Parliament should also investigate
                           the ownership and control of print media
                         in South Africa, challenges thereof and what
                               needs to be done to change tide.”

          99. On reading and interpreting the Polokwane Resolu-            plaints and Compliance Committee of ICASA.
          tions the media has not been lacking in bravery behind the
          armour of collective self-defence. Its reaction has shown        104. The proposal for MAT is meant to provide a platform
          hypersensitivity to criticism and misses the point that peo-     for citizens to be fairly treated through an independent
          ple need recourse when media freedom trampled their              process supported by public funds and accountable to the
          rights to dignity and privacy.                                   people through parliament.

          100. It is our view that the discourse on the need for a         105. The investigation is to further consider remedial mea-
          MAT should be located within a proper context. It has to be      sures which will safeguard and promote the human rights
          understood as an initiative to strengthen the human rights       of all South Africans. The media and other stakeholders,
          culture embodied in the principles of the Constitution and       including civil society, shall be consulted to ensure that the
          an effort to guarantee the equal enjoyment of human rights       process is open, transparent and public.
          by all citizens. Further, it would legalise and strengthen the
          work of the press ombudsman.                                     106. Instead of the ANC with all its bias and firm views - we
                                                                           believe that the democratic parliament should be the one
          101. It particularly relates to the balancing of human rights    charged with this mandate in order to guarantee the prin-
          in line with section 36 of the Constitution of the Republic.     ciples of independence, transparency, accountability and
          This especially relates to the need to balance the right to      fairness. This process should be initiated and driven by the
          freedom of expression, freedom of the media, with the            democratic parliament through a public hearing process.
          right to equality, to privacy and human dignity for all.
                                                                           107. Parliament should be seized with this matter to con-
          102. We hold the view that the creation of a MAT would           sider the desirability whether MAT be a statutory inde-
          strengthen, complement and support the current self-             pendent institution, established through an open, public
          regulatory institutions (Press Ombudsman/Press Council)          and transparent process, and be made accountable to par-
          in the public interest. Currently, citizens are subject to the   liament.
          decisions of the Press Ombudsman or taking the matter to
          Courts if s/he is not satisfied with the ruling of the Press     108. Parliament should consider the mandate of the media
          Ombudsman. As a result, matters take long to clear the           appeals tribunal and its powers to adjudicate over matters
          names of the alleged wrong doers by the media. Further,          or complaints expressed by citizens against print media, in
          this is an expensive exercise for an ordinary citizen.           terms of decisions and rulings made by the existing self-
                                                                           regulatory institutions, in the same way as it happens in
          103. The 52nd National Conference Resolution tasked              the case of broadcasting through the Complaints and Com-
          the ANC to investigate the desirability of setting up an         pliance Committee of ICASA.
          independent statutory institution, established through an
          open, public and transparent process, and be made ac-            109. Parliament should also investigate the ownership and
          countable to the Parliament of South Africa. It said, the        control of print media in South Africa, challenges thereof
          investigation should further consider the mandate of the         and what needs to be done to change the tide.”
          media appeal tribunal and its powers to adjudicate over
          matters or complaints expressed by citizens against print        The memorandum can be found here:
          media, in terms of decisions and rulings made by the ex-         www.anc.org.za/docs/discus/2010/mediad
          isting self-regulatory institutions, in the same way as it
          happens in the case of broadcasting through the Com-




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                             “The critical question to ask is what is
                          the role of the media in the promotion of
                            our country’s human rights culture and
                                       the Bill of Rights?”

         ■ LETTER FROm PRESIDENT ZUmA                                    and the law. Nothing must be done by government or any
           ON THE mAT –                                                  authority to undermine or erode these fundamental rights.
           ANC Today, 13 - 19 August 2010                                   While recognising the role that the media plays in a de-
           (including the full text of the                               mocracy such as ours, this role must be understood within
           Polokwane Resolution on the MAT)                              the context of strengthening our country’s human rights
                                                                         culture and promoting the values enshrined in our Consti-
                                                                         tution. The Constitution of the Republic of South Africa is
         LET THE REAL MEDIA DEBATE BEgIN!                                the supreme law of the land, and serves as a guide to all of
                                                                         us, including the media. We must all operate and function
         Sixteen years after freedom, South Africa’s young and fra-      within its letter and spirit.
         gile democracy continues to mature and has surpassed that          The critical question to ask is what is the role of the me-
         of some of the world’s most developed democracies. The          dia in the promotion of our country’s human rights culture
         features and strength of any democracy is amongst others,       and the Bill of Rights? Does it have a role in promoting na-
         robust and open debate, without fear and prejudice.             tion building? Does it have a role to play in the promotion of
            The Constitution of the Republic of South Africa, (Act       the country’s prosperity, stability and the well-being of its
         108 of 1996), has a Bill of Rights, which amongst others        people? Is it a spectator, or does it have vested interests
         guarantees the freedom of the media and expression.             and an agenda, political and commercial, that it cherishes
            As the ANC, we worked hard to get this clause into the       and promotes?
         Constitution and with good reason. We firmly believe that          I have observed and have been following the debate on
         the media must be allowed to do its work freely and with-       the ANC proposal to have parliament investigate the desir-
         out fear or prejudice, within the context of the Constitution   ability of establishing the Media Appeals Tribunal (MAT)




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          with keen interest. I must state
          from the onset that I am astound-
                                                       “The media has                                     This is based on the principle
                                                                                                      that in practising their rights and
          ed by the commentaries and opin-             put itself on the                              doing their jobs, these profession-
          ion pieces written by some within
          the media fraternity and within the            pedestal of                                  als may trample on the rights of
                                                                                                      others and the victims must have
          society broadly, in reaction to this
          important debate. Some suggest
                                                     being the guardian.                              recourse through legitimate insti-
                                                                                                      tutions. The starting point is that
          that the establishment of the MAT
          is meant to settle scores. Others
                                                     We therefore have                                media owners and media practi-
                                                                                                      tioners cannot claim that this in-
          still suggest that this is an attempt        the right to ask,                              stitution is totally snow white and

                                                      who is guarding
          by the ruling party to control and                                                          without fault. They cannot claim
          bulldoze the media using the tac-                                                           that the media products we have
          tics of apartheid regime.
              To even suggest that the ANC             the guardian?”                                 in our country today, adequately
                                                                                                      reflect the lives and aspirations of
          and its government could have any                                                           all South Africans, especially the
          similarities to the apartheid regime                                                        poor.
          is not only preposterous, it is also disingenuous and an un-        Can a guardian be a proper guardian when it does not
          bearable insult. Arguments that the ANC wants to muzzle         reflect the society it claims to protect and represent?
          the print media is premised on a falsehood that the ruling          They cannot claim that there is a diversity of ownership,
          party, the ANC has no ethics, morals and values and that        content and staffing within the newsrooms. When a per-
          it does not want the media to expose some of its cadres         son from ku-Qumbu in the Transkei opens a newspaper in
          when they are in trouble with the law, including corruption.    the morning, does he or she see himself or herself in it? Is
              We will not dwell on refuting these arguments. All right    it a mirror of his or her life - past, present and future.
          thinking and properly informed people know that it is the           For instance, South Africans rebelled against the media
          ANC democratic government that has made it fashionable          in June-July this year, united in their diversity. When the
          to fight corruption, and even to talk about fighting corrup-    gloom and doom dominated news reportage over many
          tion. We have a big arsenal of instruments to fight corrup-     months, they decided to defy the chorus of division and
          tion within the State, and these are performing their func-     negativity and projected the type of society they want to
          tions very effectively and the positive results of these are    be, and how they want to be viewed by the world. That
          there for all who are willing to see them to see.               is one 2010 FIFA World Cup tournament lesson that the
              Other than law enforcement agencies, we have Chapter        media has not yet realised or that they are choosing to
          9 institutions such as the Public Protector, South African      pretend it did not happen.
          Human Rights Commission, Auditor General and others,                Let us move beyond the hysteria, let the real debate
          managed by highly capable and distinguished men and             begin. Our first point is that before looking at what they
          women. We are very proud of their work.                         regard as external threats and perceived external threats,
              Unfortunately, it is the misleading and over-defensive      the media should conduct introspection first. During our
          arguments by some media practitioners and their support-        State visit to Russia a week ago, Russian television was
          ers that have muddied what would have ordinarily been a         running a promotional jingle saying: “How dependent is
          productive and a necessary debate within the context of         the independent media? Who pays for the news?”
          our Constitution.                                                   We also have every right to look at other pressures fa-
              The time has come for the real debate to begin. Let us      cing journalists, which make them compromise quality of
          move away from the hysteria and dwelling on individual          their stories. The media is a business enterprise. Its pri-
          experiences. Let us look at the issues and the state of the     mary issue is to make a profit. The media products must
          media in South Africa as an institution that claims to be the   make money and be commercially viable. Press freedom
          watchdog of South African society.                              and the like are noble principles, but we all know that what
              The media has put itself on the pedestal of being the       drives the media is money, like all businesses.
          guardian. We therefore have the right to ask, who is guard-         There is fierce competition to increase circulation figures
          ing the guardian? All institutions, even parliament has         in order to boost advertising. This puts many editors under
          mechanisms in place to keep them in check. Almost all pro-      constant pressure from media owners. They do not talk
          fessions have similar mechanisms from teachers to archi-        about this in public. They talk about press freedom and per-
          tects, doctors, engineers, politicians, lawyers and others.     ceived potential external threats to it from government, the




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         ruling party and not threats from commercial interests.            right to freedom of expression should not be elevated
             Therefore, the debate about “who pays for the news”            above other equally important rights such as the right to
         must also be opened, in a constructive manner. Are editors         privacy and more important rights and values such as hu-
         under pressure to sell their papers and to increase their          man dignity.
         circulation figures at whatever cost, including at times rely-
         ing on unchecked and unverified smears in order to boost
         sales and circulation?                                             ON THE ESTABLISHMENT OF A
             What protection does an ordinary citizen who cannot af-        MEDIA APPEALS TRIBUNAL (MAT)
         ford lawyers have when their rights have been violated?
         How can they compete with powerful business interests              126. Conference adopts the recommendation of the Policy
         who control the media either through ownership or adver-           conference that the establishment of a MAT be investi-
         tising spend?                                                      gated. It accordingly endorses that such investigation be
             The ANC cannot and will not pose any threat to the me-         directed at examining the principle of a MAT and the as-
         dia. It is not in its interests to do so. Not when it is working   sociated modalities for implementation. Conference notes
         so hard to consolidate and protect this hard-won democra-          that the creation of a MAT would strengthen, complement
         cy and freedom. We would never do anything to jeopardise           and support the current self-regulatory institutions (Press
         the gains we have made. But we have a responsibility to            Ombudsman/Press Council) in the public interest.
         democratise every aspect of South African society includ-
         ing the media. It is our historical duty.                          127. This discourse on the need for a MAT should be lo-
             The ANC has for many decades led struggles to libe-            cated within a proper context. It has to be understood as
         rate the masses of our people, both black and white, from          an initiative to strengthen the human rights culture embo-
         the repressive system of apartheid. As early as the 1950’s,        died in the principles of our constitution (Constitution Act
         the ANC defined the kind of South Africa it wants. This            of 1996) and an effort to guarantee the equal enjoyment of
         culminated in the adoption of the Freedom Charter, which           human rights by all citizens.
         forms the basis of our work and programme of action
         since 1994.                                                        128. It particularly relates to the balancing of human rights
             It was in this context that the African National Congress      in line with section 36 of the Constitution of the Republic.
         adopted the MAT resolution at its 52nd National Confe-             This especially relates to the need to balance the right to
         rence in 2007.                                                     freedom of expression, freedom of the media, with the
             It is proper to publish the full resolution.                   right to equality, to privacy and human dignity for all.

                                                                            129. The investigation should consider the desirability that
         “ON MEDIA FREEDOM                                                  such a MAT be a statutory institution, established through
                                                                            an open, public and transparent process, and be made ac-
         125. The ANC must promote the school of thought which              countable to Parliament. The investigation should further
         articulates media freedom within the context of the South          consider the mandate of the Tribunal and its powers to ad-
         African Constitution, in terms of which the notion that the        judicate over matters or complaints expressed by citizens



         “The ANC must promote the school of thought which
                                                                                                                                            resource section


         articulates media freedom within the context of the
         South African Constitution, in terms of which the notion
         that the right to freedom of expression should not be
         elevated above other equally important rights such as the
         right to privacy and more important rights and values
         such as human dignity.”


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          against print media, in terms of decisions and rulings made       as it is such a powerful institution. The print media, like
          by the existing self-regulatory institutions, in the same way     other institutions, cannot be viewed to be above the Cons-
          as it happens in the case of broadcasting through the Com-        titution. All South Africans are equal before the law, and
          plaints and Compliance Committee of ICASA.                        they are equal before the Constitution of the Republic. We
                                                                            must remember also that no right is absolute in terms of
          130. The investigation should further consider remedial           our Bill of Rights. Therefore our interpretation of our indi-
          measures which will safeguard and promote the human               vidual rights must always be understood in the context of
          rights of all South Africans.                                     the rights of other South Africans.
                                                                                Our contention is that the ANC does not, and will never
          131. The Media and other stakeholders, including civil soci-      pose any threat to media freedom. The media must se-
          ety, shall be consulted to ensure that the process is open,       riously conduct an introspection and open a constructive
          transparent and public. Parliament will be charged with this      debate about the role of this institution in a post-apartheid
          mandate to establish this MAT, in order to guarantee the          South Africa. Is the media a mirror of South African so-
          principles of independence, transparency, accountability          ciety? Is it in touch with what the majority of South Afri-
          and fairness.”                                                    cans feel and think? Does this institution actually know and
              It is evident from the resolution, that the proposed es-      understand South Africans? Why was it surprised by the
          tablishment of the MAT, even at the time that the ANC dis-        explosion of national pride during the Soccer World Cup
          cussed and adopted it, was never and will never be used           tournament? Why did South Africans decide to rise above
          to settle scores or to undermine the Constitution of the          the daily diet of negativity and defeatism that they are fed
          Republic. The ANC acknowledges the need for the work              daily in the media?
          of the MAT to be transparent and fair, and this can be ef-            What is the impact of ownership on content and staff-
          fectively done through people’s institutions such as parlia-      ing? What is the ideological outlook of the media? Is there
          ment which has public representatives.                            an alienation with the post-apartheid democratic order
              Our parliamentarians come from different political par-       and thinking? Are we on the same wavelength regarding
          ties, and importantly the public is also allowed through due      where South Africa should go politically, socially and eco-
          processes to participate in the work of government. The           nomically? Does the media understand this well enough to
          allegation that the ANC therefore through the establish-          articulate it to South Africans, to enable to accurately judge
          ment of the MAT, wants to control the media is false and          government action and performance?
          misleading. The MAT is meant to protect South Africans,               Let me reiterate that the ANC will never do anything that
          rich or poor, black or white, rural or urban. The ANC, as         undermines the spirit of the Constitution of the Republic,
          the leader in South African society, cannot fail in its duty      and which erodes the dignity and rights of other people,
          to defend our Constitution and to protect and defend the          regardless of their standing in society. Let us have an open
          rights of citizens.                                               debate about the role of the media and its alignment with
              The debate has nothing to do with the experiences of          the Constitution of the Republic and human rights culture.
          certain individuals with the media. This is not personal, it is   Let us openly debate the ownership, content and diversity
          aimed at advancing the freedoms that are enshrined in our         issues. Let there be no holy cows. The media should allow
          Constitution. It is aimed at ensuring that those who do not       the ANC and the public the right to freedom of expression.
          have money to go to lawyers can still obtain protection, as           We will use our right to express what we think. And
          they do from the Broadcasting Complaints Commission of            we should not be silenced by claims of “threats to press
          South Africa.                                                     freedom”.
              The broadcast media is regulated to protect the public            Let the real debate begin. Let there be no holy cows.



                   “The allegation that the ANC therefore through
                  the establishment of the MAT, wants to control
                    the media is false and misleading. The MAT is
                  meant to protect South Africans, rich or poor, black
                               or white, rural or urban.”


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                                           PRESIDENT BARACK OBAmA’S
                                             EXECUTIVE ORDER 13526 -
                                 Classified National Security
                                          Information
         THIS ORDER RECOgNISES that the democratic principles
         of the United States of America require that the American
         people are informed of the Government’s activities. It also
         states that the protection of information critical to Ame-
         rica’s security and the commitment to open government
         “through accurate and accountable application of classifi-
         cation standards and routine, secure, and effective declas-
         sification are equally important priorities”.
             The Order is very precise, compared to South Africa’s
         Protection of Information Bill, as it determines that infor-
         mation can only be considered for classification if its unau-
         thorized disclosure could reasonably be expected to harm
         national security. National security is precisely defined to
         include matters such as military plans and scientific, tech-
         nological or economic matters that might affect national
         security. The anticipated damage to national security must
         be identifiable and describable, and “if there is any signifi-
         cant doubt about the need to classify information, it shall
         not be classified.”
             Appeals are considered by an Interagency Security Clas-
         sifications Appeals Panel comprising representatives from
         the principal security departments and agencies. Provision
         is also made for requests for a mandatory declassification
         review provided that the document or material can be de-
                                                                          “The penalties in
         scribed with sufficient specificity to enable the relevant
         agency to locate it. The penalties in this Order are solely
                                                                          this Order are solely
         directed at employees who are responsible for handling           directed at employees
                                                                          who are responsi-
         classified information. The sanctions may include a repri-
         mand, suspension without pay, removal or the termination
         of classification authority.
             The Order is precisely limited to clearly defined secu-      ble for handling clas-
         rity information, and it is under the aegis of the National
                                                                          sified information.
                                                                                                                       resource section


         Archives. It professes to the free flow of information be-
         tween government and the people, whilst also prohibiting         The sanctions may
         classification for improper purposes.
                                                                          include a reprimand,
                                                                          suspension without
                                                                          pay, removal or the
                                                                          termination of classifi-
                                                                          cation authority.”


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          ■ EXTRACTS FROm PRESIDENT                                         “Sec. 1.4. Classification Categories.
            BARACK OBAmA’S EXECUTIVE                                        Information shall not be considered for classification unless
            ORDER 13526 - CLASSIFIED                                        its unauthorized disclosure could reasonably be expected
            NATIONAL SECURITY INFORmATION                                   to cause identifiable or describable damage to the national
                                                                            security in accordance with section 1.2 of this order, and it
          “Section 1.1. Classification Standards.                           pertains to one or more of the following:
          (a) Information may be originally classified under the terms      (a) military plans, weapons systems, or operations;
          of this order only if all of the following conditions are met:    (b) foreign government information;
             (1) an original classification authority is classifying the    (c) intelligence activities (including covert action), intelli-
                 information;                                               gence sources or methods, or cryptology;
             (2) the information is owned by, produced by or for, or is     (d) foreign relations or foreign activities of the United
                 under the control of the United States Government;         States, including confidential sources;
             (3) the information falls within one or more of the ca-        (e) scientific, technological, or economic matters relating
                 tegories of information listed in section 1.4 of this      to the national security;
                 order; and                                                 (f) United States Government programs for safeguarding
             (4) the original classification authority determines that      nuclear materials or facilities;
                 the unauthorized disclosure of the information rea-        (g) vulnerabilities or capabilities of systems, installations,
                 sonably could be expected to result in damage to           infrastructures, projects, plans, or protection services rela-
                 the national security, which includes defense against      ting to the national security; or
                 transnational terrorism, and the original classification   (h) the development, production, or use of weapons of
                 authority is able to identify or describe the damage.      mass destruction.”

          (b) If there is significant doubt about the need to classify      Executive Order 13526 is available on
          information, it shall not be classified. This provision does      www.whitehouse.gov/the-press-office/executive-
          not:                                                              order-classified-national-security-information
             (1) amplify or modify the substantive criteria or proce-
                 dures for classification; or
             (2) create any substantive or procedural rights subject
                  to judicial review.

          (c) Classified information shall not be declassified automa-
          tically as a result of any unauthorized disclosure of identical
          or similar information.

          (d) The unauthorized disclosure of foreign government in-
          formation is presumed to cause damage to the national
          security.”...



                                     “If there is significant doubt
                                about the need to classify information,
                                        it shall not be classified.”

                               “The unauthorized disclosure
                     of foreign government information is presumed
                          to cause damage to the national security.”


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                  British House of Commons Report on
                        Self-regulation of the Press
         IN 2007 THE BRITISH HOUSE of Commons held hearings
         on the persistent press harassment of Kate Middleton -
         Prince William’s girlfriend; on News of the World’s royal
         editor Clive Goodman’s conviction for the illegal intercep-
         tion of communications; and on the widespread use by
         journalists of private investigators who obtained personal
         data by illegal means.
             In considering the role of the British Press Complaints
         Commission the Parliamentary Committee reached a
         number of critical conclusions: It noted that the PCC did
         not command absolute confidence that it was fair; there
         was debate about whether the PCC should be more willing
         to accept third-party complaints; and there were criticisms
         that the PCC applied its own press code with “far too light             “We believe that it was right for the PCC to extend
         a touch.”                                                           its remit to cover editorial audio and visual content on
             The Parliamentary Committee’s main finding was un-              newspaper websites. Questions remain, however,
         ambiguous and is of central relevance to the South African          about whether it should have gone further. Editors bear
         debate. “We do not believe that there is a case for a statu-        a measure of responsibility for all content on their pub-
         tory regulator for the press, which would represent a very          lications’ websites, whether or not they have editorial
         dangerous interference with the freedom of the press. We            control over it.
         continue to believe that statutory regulation of the press              “We support the principle of seeking a resolution of
         is a hallmark of authoritarianism and risks undermining de-         a complaint through conciliation and without going to
         mocracy. We recommend that self-regulation should be                formal adjudication, although we believe that it would
         retained for the press, while recognising that it must be           be helpful to publish details of the resolution if the com-
         seen to be effective if calls for statutory intervention are        plainant so wishes. We believe that such a practice
         to be resisted.”                                                    would enhance the public’s view of the effectiveness
                                                                             of the Commission and would strengthen the under-
                                                                             standing by the press and by the public of the principles
         ■ EXTRACTS FROm THE BRITISH                                         which underlie the Commission’s work.
           HOUSE OF COmmONS REPORT ON                                            “We do not find all the PCC’s arguments against the
           SELF-REGULATION OF THE PRESS                                      introduction of fines convincing. While there is little evi-
                                                                             dence that the industry would support financial penal-
           “We do not believe that there is a case for a statutory           ties, if that was the price of maintaining a self-regulatory
           regulator for the press, which would represent a very             system the likelihood is that they would accept them.
           dangerous interference with the freedom of the press.             However, we accept that giving the PCC powers to im-
                                                                                                                                            resource section


           We continue to believe that statutory regulation of the           pose fines would risk changing the nature of the organi-
           press is a hallmark of authoritarianism and risks under-          sation and might need statutory backing to make the
           mining democracy. We recommend that self-regulation               power enforceable. This would be a major step which
           should be retained for the press, while recognising that          we would not recommend without a broader examina-
           it must be seen to be effective if calls for statutory inter-     tion of the subject.”
           vention are to be resisted.
               “We nonetheless support the inclusion in staff con-         The Report is available on
           tracts of a clause requiring adherence to the Code of           www.publications.parliament.uk/pa/cm200607/
           Practice as a condition of employment, which we believe         cmselect/cmcumeds/375/375.pdf
           would safeguard journalists who believed that they were
           being asked to use unethical newsgathering practices.




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               OSCE media Self-Regulation Guidebook
          THE MEDIA SELF-REgULATION Guidebook is an initia-               “Can governmental regulations harm press freedoms?
          tive of the Organization for Security and Co-operation in       Undue legal restrictions passed by freely elected govern-
          Europe’s Office for Freedom of the Media. It is this unit’s     ments can be almost as oppressive for the press as the
          mandate to defend and support media freedom in the              dictatorial arbitrariness of the past. This is especially the
          OSCE area.                                                      case when legal restrictions are created (or misused) with
              It is stated in the foreword that quality should never be   the clear intention of eliminating independent reporting and
          a pre-requisite for freedom and that “only a fully free press   opinion. Such malicious media laws might, for example:
          can be fully responsible.” It sees self-regulation and the            • Discriminate against non-state media outlets, in
          promotion of quality journalism as additional safeguards of              favour of the still-existing state-owned press, for
          media freedom. The Guidebook intends to “offer informa-                  example in the administration of such spheres as
          tion to journalists, editors, publishers, and media students,            registration, taxation, printing, subscription and dis-
          as well as to government officials.”                                     tribution;
              The publications doesn’t focus on specific countries, but         • Unfairly control the issue of broadcast licences;
          is composed of questions and answers on a wide range of               • Criminalize dissenting views or unwelcome inves-
          concerns. Amongst other things, it looks at questions on                 tigative stories;
          the merits of media self-regulation, including media self-            • Use a selective approach in the application of crimi-
          regulation versus regulating the media; journalistic codes              nal or civil provisions protecting personal rights...
          of ethic; and self-regulating bodies such as the Press
          Council and the Ombudsman.                                      “Can governmental regulations unintentionally harm
                                                                          press freedoms while protecting other freedoms?
          This publication is available here:                             Time and again, the road to unnecessary legal interference
          www.osce.org/item/30697.html                                    is paved with good will, and prompted by the public’s real
                                                                          need for standards in journalism. Many undue limitations
                                                                          are intended to “help” enhance ethics and quality, or “bal-
                                                                          ance” freedom of the press against other important values,
                                                                          like state security, social peace, or personal rights. In the
                                                                          hope of eliminating hatefilled public debate, governments
                                                                          often overstep the legitimate limits of criminalisation of
                                                                          speech and allow prosecution of all kinds of intolerant,
                                                                          discriminatory speech, or simply views that offend others.
                                                                          Such laws tend to merely impose the tastes of the ruling
                                                                          parliamentary majority...

                                                                          “What are the dangers of a statutory press council?
                                                                          The independence of such a press council is question-
                                                                          able. It is especially at risk in countries in transition where
                                                                          democratic processes are still fragile. There may still be
                                                                          political influence on the media and a high level of self-
                                                                          censorship by media professionals as former patterns of
                                                                          political behavior survive. Statutory press councils should
                                                                          be avoided.”




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            Review of the New Zealand Press Council
         THE REVIEW OF THE New Zealand Press Council is the first                                                                 1


         independent review of the Press Council since it was formed
         in 1972. It’s aim is to:
               • “review the purposes, activities, performance and
                 resourcing of the New Zealand Press Council;
               • to consider whether the Council’s objectives are
                 adequate in the light of changing circumstances and
                 public perceptions and whether the Council is oper-                       Review of the
                 ating in a manner consistent with them; and                         New Zealand Pre
               • to assess the range and scope of the Council’s                                      ss Council
                 activities when compared with the operations of sim-
                 ilar bodies in other countries.”

         The Review looks at matters such as the regulatory process
         for the media and the history and current state of the Press
         Council. Apart from this, it also makes recommendations with                       Ian Bar ker and Lew
                                                                                                                is Eva ns
         regards to the independence and the process of the Council.
         The following table, on page 93 of the Review, is a summary
         of the research undertaken into other press councils:

              SUMMARy 1


              Number of Press Councils                                                                                          87

              Percentage under self-regulation                                                                                  86

              Percentage that are non-government funded                                                                         80

              Percentage with print and broadcast media under their jurisdiction                                                63

              Percentage charged with enhancing a free press                                                                    77

              Percentage for which public membership is at least that of owners and journalists                                 34

              Percentage which have at least 11 members                                                                         41

              Percentage that have a penalty of published decision only                                                         86

              Percentage for which appeal rights exist                                                                          50

              Percentage that have a mediation process                                                                          63
                                                                                                                                              resource section


              Percentage that have a waiver                                                                                     56

              Percentage that can take initiatives with respect to potential violation                                          70

              Percentage that have an ombudsman                                                                                 16

              Percentage that operate under a code*                                                                             82

              Percentage that operate under principles only*                                                                     8


              * Percent of the total reporting whether they operated under a code or principles

              The Review can be found here: www.presscouncil.org.nz/articles/press_council_review.pdf                                     ●




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                                                                                                                  VOLUM E 7 • IS S U E 2       41
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