THE Freedom of Expression Institute (FXI) has lodged a request to the SA Law Reform Commission (SALRC) for an investigation into the amendment of section 205 of the Criminal Procedure Act and the introduction of a “shield law” with regard to the protection of confidential journalistic sources and information, according to a media release.

The recent debacle over the issuing of subpoenas calling for two eTV journalists to divulge their sources and confidential information highlighted the controversial point at which conflicting rights collide and the manner in which section 205 is abused. The interests of the effective administration of justice and maintenance of law and order compete with the right to freedom of expression. Moreover, it demonstrated the urgent need for clear legislation to clarify otherwise vague and untested common law principles and constitutional concepts.

At the core of this conflict lies the question whether the public interest in compelling the journalist to reveal his or her source or confidential information clearly outweighs the public interest in the free flow of information.

It is essential that legislation be enacted which explicitly protects the confidentiality of journalistic sources and information from unfettered disclosure. Moreover, the right to refrain from revealing confidential information should extend to all persons who directly contribute to the gathering, editing, production or distribution of information to the public by way of a medium as well as those who may obtain knowledge of information in the course of their professional relations with a journalist that can lead to the disclosure of a source.

The protection of confidential sources and information should not be restricted on the basis of educational/licensing requirements or membership in professional associations or by the format utilised for the dissemination of information to the public. Furthermore, the right to refuse to disclose the name of a source or to provide other information which may disclose the source’s identity should extend to unpublished materials, notes, documents or other materials such as photographs and video footage obtained during the course of his or her work.

The legislation should state in clear and precise terms the conditions under which compelled disclosure of confidential information is allowed.

In keeping with international human rights standards and best practice, a disclosure order should in our view be limited to circumstances where:

  • the information sought is necessary to prevent imminent and actual serious bodily harm;
  • the information is absolutely necessary for a central issue in a case relating to guilt or innocence;
  • it can be shown that the information cannot be obtained by other means; and
  • the court is satisfied that the public interest in the compelled disclosure of the confidential information outweighs the public interest in the free flow of information.

Alternatively, FXI has recommended that section 205 of the CPA be amended to protect the right of journalists to refuse to disclose the identities of their confidential sources. (See FXI’s submission to SALRC)

Such legislation would bring South African law in line with international human rights standards and best practice as it would explicitly recognize the right of journalists and other media practitioners to refuse to reveal confidential sources and would expressly limit such right only in cases where it is reasonable and justifiable to do so. In so doing, the law would also prevent further abuse of the powers conferred by section 205 of the CPA and comparable legislative provisions without derogating from the authority of the judiciary or the state. By adopting such legislation, South Africa would fulfil its constitutional obligations to safeguard the freedom of the press as an essential component of the right to freedom of expression.

Melissa Moore
Acting Executive Director
Freedom of Expression Institute
Mobile: 082 924 8268