As parliamentary hearings on the Protection of Information Bill begin in South Africa today, the International Press Institute expressed its concern over many of the provisions contained in the draft legislation, arguing that they should explicitly take into account journalists acting in the public interest.

The original draft of the Protection of Information Bill is designed to regulate the classification procedures and also sets out penalties for disclosing confidential or secret state information. The bill was originated by the ministry of state security two years ago, but was rejected in 2008 by a ministerial committee, which said the bill could lead to excessive government secrecy.

The bill has since been amended, but critics say that many of the original criticisms were ignored in the new version of the bill and that the current version may have an even more chilling effect on the media.

While the bill acknowledges the “harm of excessive secrecy” in its preamble, and states that its aim is to “promote the free flow of information within an open and democratic society,” it also sets a very low threshold for classification and imposes draconian penalties for those who reveal classified information, without providing for a public interest defence.

The bill permits the heads of state organs to classify information if they deem that its disclosure could harm the “national interest of the Republic.” But the “national interest” is defined broadly to include “all matters relating to the advancement of the public good” as well as “all matters relating to the protection and preservation of all things owned or maintained for the public by the State.” It specifically includes “the pursuit of justice, democracy, economic growth, free trade, a stable monetary system and sound international relations.” This broad definition has led to concerns that information about almost any matter of state could be classified.

The bill also allows the heads of state organs to delegate classification responsibility to a “subordinate staff member,” which could create a culture of secrecy. A previous version of the bill stated that if there was “significant doubt” about classifying certain information, it should not be classified; the current version provides that the matter should be referred to the minister of state security. Again, concentrating the power to classify information in the hands of the intelligence minister, who has no vested interest in promoting the free flow of information or the public interest, could lead to a culture of excessive secrecy.

The process of requesting declassification has also been called into question. Members of the public can request the declassification of information, or can make a request for classified information under the Promotion of Access to Information Act 2000, but these requests go through the same state institute that classified the information in the first place, creating a possible conflict of interest.

Most worrying are the draconian sentences that the bill provides for the disclosure of classified information – with penalties ranging from three to five years in prison – and for the communication or delivery of classified information, for which penalties range from three to 25 years imprisonment. There is no option for a fine and the public interest is not explicitly mentioned as a defence.

The bill also criminalizes the improper classification of information, where the intent is to “conceal breaches of the law,” “promote or further an unlawful act, inefficiency or administrative error; prevent embarrassment” or “give undue advantage to anyone within a competitive bidding process.” However, the penalty here is a maximum of three years imprisonment, with the option of a fine.

The asymmetrical penalties for those who might abuse this law to cover their own corruption versus the penalties that could be handed to journalists or public officials who are interested in sharing classified information in the public interest could again promote excessive secrecy, and have a chilling effect on investigative journalism.

“There is a growing tendency to clam up on information or impose restrictions on information and here is yet another bill which is taking this forward,” said Raymond Louw, editor of the Southern Africa Report and an IPI Fellow, in a telephone conversation with IPI.

“Of particular concern is the added power given to the minister of state security. In addition to ‘in-doubt’ decisions now falling under the minister, a new section has been added to the bill which gives the minister wide-ranging powers to classify and declassify information,” wrote Louw in a piece published by Business Day online newspaper. “It will not take long before the title of chief protector of information is bestowed on him — and that will quickly be changed to SA’s chief censor.”

“I am concerned that if turned into law, this bill will permit the concealment of a vast range of information that is in the public interest, while at the same time leading to the erosion of investigative journalism,” said IPI Director David Dadge.

“Public officials can too easily hide information, without significant oversight from an independent body,” Dadge said. “The bill also opens itself to abuse, because journalists must rely on the good will of the public prosecutor’s office and the government itself in order to avoid facing espionage charges, all because the reporter uncovered a story that puts a particular public official or political party in a bad light.

“We hereby call on the South African parliament to reject this bill in its current form. Clearly there is a strong argument for permitting the classification of state information. But where is the overlap between the national interest and the public interest? The bill should be amended so that journalists who report on classified information in the public interest are protected, and so that if a request for classified information is rejected, the appeal goes to an independent institution,” said Dadge.

“In a democratic society that values the free flow of information, journalists must be afforded the opportunity to raise a defence showing the public interest outweighs the national interest.  If not, government will be able to use the national interest to hide issues which should be in the public domain,” Dadge said.