Friedman wrong on secrecy bill

Professor Steven Friedman in an article in Business Day says that the media has it wrong about secrecy law’s victims and that the failure of the media to analyse the bill accurately may be the only reason it has received so much attention.

He basis this, primarily, on the following :

“Media coverage of the bill has been long on rhetoric and short on accuracy and thoroughness. Any of us who have not been living in a bubble know that it threatens to allow the government to classify information and to jail anyone who publishes that information. What few of us know — including, probably, many who write and comment on the bill — is that section 17 qualifies this.”

I humbly beg to differ :

The relief which the media will be seeking in order to declassify documents will be obtained from our courts.

In this regard Section 17 — in my humble opinion — becomes worthless.

Having filed many urgent applications as an attorney before our high courts I am aware of the amount of these that are rejected on the grounds that they lack urgency.

The courts will hear the applications but in the ordinary course, which can run to weeks.

In addition — and here’s where it gets really ugly — if there is a dispute of fact, which you can bet there will be in these cases, it will need to be referred for oral evidence which could land up taking months or even years.

So while the qualifications of Section 17 are being debated the story will become so old it won’t be worth the paper it’s written on.

Then the act gives a tricky little kick in the teeth : 46 “Protection of State information before courts”.

“Classified information that is placed before a court may not be disclosed to persons not authorised to receive such information unless a court, in the interests of justice, and upon considering issues of national security, national interest of the Republic as referred to in section 11 and any other law, orders full or limited disclosure, with or without conditions.”

If this is factored in then you have effectively blocked the media completely.

Because until a judge rules otherwise that information is classified.

Professor Friedman also fails to take into account the fact that while the media are playing this urgent application game they will also be at risk of the enormous criminal sanctions that flow from being in possession of these documents.

Who would risk their lives to go and test a classified document in court?

Section 17 doesn’t offer any consolation — rather it stands as a fop to show that the government are keen to ensure that the act is reasonable when in practical terms that section is worthless. Not only because the courts will be bogged down trying to define the intention of the act but because in time the legislature — now with a foothold — will close any gaps through further legislation.

To suggest that Section 17 offers the media any protection or a solution is to disregard the day-to-day problems the media will experience in trying to employ it in lifting the classifications of documents and the risks of becoming criminals that people will have to run in order to challenge them.

Professor De Vos has other reasons, which are set out in this blog.