Protection from Harassment Bill: public hearings

Meeting report

Print Media South Africa and South African National Editors Forum submission
Mr Simon Delaney, Attorney at Eversheds, said the South African National Editors Forum (SANEF) was a voluntary forum of senior journalists, editors and journalism trainers from all areas of the media industry in South Africa. SANEF’s primary aim was to promote equality and ethics in journalism, to reflect the diversity of South Africa and to champion freedom of expression. Print Media South Africa (PMSA) represented over 700 newspaper and magazine titles in South Africa and provided a forum for a unified representation of its members in respect of all matters affecting print media. The Protection from Harassment Bill was welcomed as it provided protection for victims of stalking and targeted the gaps in the law. However, the Bill may have unintended consequences which could affect the media. There was a fundamental problem in the definitions section. The definition of ‘harassment’ was overbroad and put journalists – engaged in legitimate journalistic activities - at risk of arrest and imprisonment.  The exemption in the Bill for “conduct that was not unreasonable” was not enough to protect investigative journalists. The work of investigative journalists that was of public importance would constitute harassment according to the Bill. The Bill essentially proscribed any form of communication. Reporters must – out of necessity – be persistent because for example a whistle blower who previously did not want to disclose a story might change their mind over time. There had to be a public interest override, as the test of reasonableness did not cover the media.

The good faith activities of journalists should not be grouped together with the bad activities of stalkers and the like. Annoying behaviour such as telemarketing should also be distinguished from the work of journalists. The media had self-regulatory structures such as the Broadcasting Complaints Commission (BCC) and Press Council. The Press Codes prevented journalists from obtaining news in a dishonest and unfair manner unless public interest dictated otherwise. It had to be borne in mind that the right to privacy may be overwritten by a public interest override. The Press Codes had been around for several years and they had never been challenged or deemed to been inadequate. The Press Codes had never been declared constitutionally invalid. Public interest was the ultimate test. The overbroad definition of harassment may be mitigated by the inclusion of a public interest defence.

Discussion
Mr J Jeffrey (ANC) said that he supported the right to freedom of expression. It should be borne in mind that the Bill did not prohibit harassment; it provided a mechanism for people to go to court if they felt that they had been harassed and obtain a court order to stop harassment. Nobody was stopping journalists from doing their work; the Bill merely provided a mechanism for someone to obtain a court order if they felt that they were being harassed. The decision whether there was harassment or not would be decided by the courts.  The Bill was not saying that the Bill could not do some of the things referred to in the submission. All rights were subject to balance against other rights. For example, the right to information had to be balanced against the right to privacy. It was concerning that the submission seemed to say that it was okay for journalists to do things that law enforcement agencies could not do: to harass a person until such time the  person gave in and started talking. The right to remain silent was overlooked in the submission. SANEF and PMSA seem to want to sanction a journalist harassing a person until they spoke; this was the problem with the submission. The submission was effectively requesting the legislator to waiver the right to silence from people who were being harassed by journalists.

In the written submission, there was a litany of complaints from SANEF and PMSA. What “Committees” were holding meetings behind closed doors and which other “journalists” were being arrested. Mr Jeffrey knew of one incident where these things happened, what other incidents were there?  It seemed that there were half-truths in the submission. Another complaint was that SANEF and PMSA was not consulted by the South African Law Reform Commission (SALRC). There was a rigorous process preceding the Bill such as discussion papers, did the two organisations expect the SALRC – which was headed by Justice Mokgoro, Justice Mailula, Advocate JJ Gauntlet, Judge Howie and other academics – to come and say please make a submission? It was not true that the media was not invited during the discussion phase of the draft Bill as everybody was, as per the norm, when Bills were being drafted. The whole purpose of a discussion paper was that it was in the public domain; everybody had a chance to participate. The litany of complaints was inaccurate and false. Parliament had to consult the House of Traditional Leaders as this was a statutory provision, should the same be done for SANEF and PMSA? The UK and Europe had an advanced human rights culture and it was acceptable for a person to seek a protection order if harassed, why should it be different here?

Ms D Schaefer (DA) commented that her party supported press freedom. How did SANEF and PMSA define legitimate public interest, was there any case law on this? 

Mr G Ndabandaba (ANC) commented that he supported what Mr Jeffery had said. The submission had rather a lot of trivialities.

The Chairperson said that there had been a meeting over the weekend between SANEF and the ANC to discuss the Press Codes. However Mr Delaney stated that there had not been any complaints about the Press Codes. It was not correct to say that there were no complaints.

Mr Delaney replied that he had not consulted with his clients about the meeting with the ANC over the weekend. What he meant was that the Press Codes had not been challenged in a court of law.

Mr Jeffery interrupted and asked if it was Mr Delaney’s client’s (SANEF) position that they were entirely happy with self-regulation?

Mr Delaney replied that he did not have instructions nor a mandate to delve into the issue of self-regulation.

Mr Jeffery reiterated the question and asked if it was SANEF’s position that self-regulation as it currently stood, was acceptable, in other words do all members of SANEF accept the Press Codes?

Ms Gaye Davis, Secretary General of SANEF, replied that it was important for Members to be aware that there was a review currently underway by the Press Council of South Africa on the system of self-regulation. It was a review that was being undertaken due to the complaints received. There was another separate review process looking into best practice of countries around the world where there the media was regulated.

Mr Jeffery said that Ms Davis would agree there were a number of different views amongst the SANEF editors?

Ms Davis replied that it was important to understand that SANEF comprised a voluntary forum of senior editors thus they came from diverse media houses and came from a diverse range of positions across the political and ideological spectrum. Therefore there was no united single caucused position that everybody stood behind. There was a high degree of consensus around the need for an independent free media.

Mr M Gungubele (ANC) said that what Ms Davis had just said therefore meant that there was a problem in the area of self-regulation as there was a review from within the press. Another important issue was how did the press want to engage with Parliament on the processing of Bills going forward?

The Chairperson said that the other difficulty was that it was said journalists could publish stories in the public interest yet no one was asking the fundamental question of who should determine what could be labeled as being in the public interest. Another problem with the submission was that it took away the power of the courts to determine what could be deemed as being in the public interest. This was a fundamental flaw in the submission.

Mr Delaney replied that a court had to decide if harassment had taken place and it should also determine whether a published story was in the public interest. If a journalist was hauled before court they should be able to use a public interest defence, which was not in the Bill.

Ms Davis added that the other matters where meetings were held behind closed doors and journalists had been arrested were that in a meeting of the Portfolio Committee on Health where they were going to be briefed by the heads of medical faculties the Chairperson preferred a closed session, members of the press put up a stand and refused to vacate the room and the meeting was abandoned.  Last night he received a text message in connection with the arrest of a photographer of the Mail and Guardian after he had laid a charge against some persons who had damaged his camera and equipment. These persons had also laid a counter-charge against him.

Mr J Sibanyoni (ANC) said that what the Bill was only correcting an evil, which was stalking, journalism was in no way an evil. It would not be fair to have a clause that specifically addressed journalists or excluded them from the ambit of the Bill.

Mr Delaney replied that his instructions were that SANEF and PMSA were not consulted by the SALRC, which had interviewed a wide range of interested parties.

Mr Jeffery interrupted and said that the meeting was going round in circles, the point the Committee was trying to make was that the way the Commission worked was that it advertised and nobody was directly approached. Has there been a problem with the British Act; the cases from the United Kingdom (UK) that were referred to in the submissions were over ten years old.

Mr Delaney responded by stating that the issue of public interest was decided on a case-by-case basis and there was no definite definition. The public interest defence however should be made available to journalists.

The Chairperson thanked PMSA and SANEF.

AVUSA submission
Dr Dario Milo partner at Webber Wentzel and appearing on behalf of AVUSA presented to the Committee that AVUSA was a publisher of the Sunday Times, The Times, Sowetan, Sunday World, Business Day, Financial Mail, The Herald, Weekend Post, Daily Dispatch, Saturday Dispatch and I Net Bridge. There was a definite need for stalking related laws in South Africa. The Bill might unintentionally go beyond its objective. There were three issues that the submission was concerned about: the first was the potential impact of the Bill on news gathering; news publishing and the ability to attend court proceedings where protection and interim orders were sought against journalists. The Constitution protected freedom of expression in Section 16, which included freedom of the press and media. It was trite that no right was absolute and he am not arguing for absolute freedom of the media. Freedom of expression must be interpreted according to the facts of each case; AVUSA was saying that the wording of the legislation was open to the interpretation that it could harm freedom of expression in certain respects. It should be noted that it was the gathering and publishing of the news that benefited from the right to freedom of expression. Legitimate news gathering activities had to be protected by the right to freedom of expression. The potential harm of this Bill would strike at the gathering and publishing of news.

I will propose some draft options that would make the Bill more accommodating for the publishing and gathering of news. The submission differed slightly to the written submission that you had in front of you. he was not advocating that there should be a system where the media could force commentary out of a subject, and he was not purporting that there should be a general exemption for journalists. The Bill might affect some techniques that were acceptable and genuine journalistic techniques. These were hidden cameras, following a subject and door stepping. Door stepping was where a subject had continuously ignored the calls and emails of a journalist; the journalist then could wait for the subject when they left their home or work place and try and get a response. There was a potential for abuse, where a prominent public figure that was being tried for a crime could just say that they were being harassed and obtain a protection order against the media. There was potential for the Bill to affect the publishing of news. The English courts had been useful where the judgment in the Thomas case held that “It would be very rare that we would find the publishing of a series of articles to be deemed as harassment” In principle the danger for a South African court under this Bill to hold a different view was there.

The Chairperson interrupted and informed Dr Milo that he was running out of time.

Dr Milo continued that there could be potential for news to perish if a journalist was hauled before court and barred from publishing a story via an interim protection order until the court had decided on the matter. The first draft option should be the inclusion of the intent to harass: “Harassment means is knowingly directly or indirectly engaging in conduct that causes harm or inspires the belief that harm may be caused.” Another approach would be to have a lawful excuse defence, this was similar to what happened in England and Canada: “Harassment is not present effectively where there is a lawful entitlement to engage in that conduct.” This would address the matter of a journalist investigating a matter that would be in the public interest. The last option would be to ensure that applications against a journalist could only happen when both parties were before the court. This would deal with the potential problem of an interim order as this would stop free speech in its tracks. Clause 5 was not consistent with the principle of open justice. There was no mechanism that allowed an interested party to approach a Magistrate that wanted a closed session, to say that there were good grounds for the proceedings to not be held in a closed session.   

Discussion
Mr Gungubele said that he was worried about the word “knowingly” in the first draft option, who could determine if an individual did something knowingly?  The Bill was about protecting an affected person. In the submission it was stated that hidden cameras were a legitimate journalistic activity, would you then accept being randomly bugged by the state? If South African law mad it unlawful to bug a person why should hidden cameras be allowed? Would you call it harassment where a person was a subject of a recording from a hidden camera?

Mr Jeffery said that a journalist would be excluded from the application of the Bill if they were pursuing certain conduct for the purposes of detecting a crime. There had to be balancing, the conduct of a journalist whilst pursuing a story had to be reasonable.

Mr Ndabandaba asked for an opinion from the presenters on how much discretion should be afforded to journalists to try and convince the subject of an investigation that there was no intended harassment whilst they were being investigated.

Ms Schafer said that Dr Milo was aware that it was very difficult to prove intention, including it would amount to a blanket exclusion.

Dr Milo replied that it was not an easy way out for journalist if the word “knowingly” was included in the definition of harassment. The Constitutional Court had said that one could not punish a person or bestow consequences upon them without prior knowledge or fault being proven. Instances of strict liability where there was no fault were very rare in our law.  Most crimes required fault at the level of either negligence or intention. The Bill rightly envisaged criminal consequences. Courts drew inferences from someone’s conduct all the time and would be able to ascertain intention. Magistrates and Judges dealt with instances where they had to determine intention all the time and were quite experienced in this regard, it was not as difficult as it seemed. The English Act said, “It amounts to harassment where you know or ought to know it amounts to harassment”. Most foreign statutes that were discussed in the discussion paper had the word knowingly included in the definition of harassment. This issue was not just for the mediation purposes but also for rule of law purposes.

Mr Gungubele pointed out that the English law had “ought to know” and “know”.

Dr Milo replied that the principle of ought to know was an objective test that took into consideration the reasonableness and knowingly was a subjective test that took into consideration the peculiar facts of each case. There had to be mechanisms in the law that included a test to establish intention. The concept of intention was decided along with all relevant factors, which were disclosed by the evidence. Hidden cameras might be deemed as criminal conduct, for example trespassing. There were two issues, could a person be held liable for hiding the camera? The answer was yes.  The law however said that one could publish based on what was gathered from the hidden camera if it was in the public interest. Criminal law already regulated the area of hidden cameras; the Bill was not necessary as a second policing mechanism.

Mr Jeffery said that one wanted a balancing mechanism but it was difficult to see how this was achieved because the moment one could prove - in your own words - a legitimate course of conduct it was no longer harassment and was excluded.

Dr Milo replied that the balancing act would be at the level of the courts where a Magistrate would balance between on the one the conduct that was being argued to have caused the harm and on the other hand the journalist saying that they were entitled to do that. One had to consider issues like reasonableness, public interest or forcing someone to waiver their right to silence.  

Mr Jeffery commented that one had to allow a situation where even where the conduct was for a legitimate purpose, the rights of the victim had to be balanced with the rights of the journalist when pursing a story, maybe lawful entitlement would do this but there was a need for a definition of this concept.

Mr Gungubele asked if the inclusion of “unreasonable” was not enough in the Bill to guide journalists in their conduct.

Dr Milo replied that it did to some agree but the difficulty was that what was reasonable was itself open to debate and interpretation.

Mr Gungubele said that the courts had already decided what reasonableness entailed, it was an established principle. One could not sit here and say that reasonableness was open to debate depending on the nature of each circumstance.

Dr Milo closed by saying that the Committee would have to take a view on the potential infringement of the freedom of expression and media by the Bill and whether unreasonableness was an adequate safeguard. There had to be additional safeguards.

Triangle Project submission
Ms Jill Henderson, Project Coordinator for the Triangle Project presented to the Committee that the organisation’s aim was for the eradication of a discriminatory society. The general aims of the Bill were welcome by the organisation. The submission would focus on harassment based on sexual orientation, gender and identity. It would also focus on social discrimination and other forms of discrimination. A further submission was that the Promotion of Equality and Prevention of Unfair Discrimination Act should be woven and mainstreamed into all relevant legislation. The Committee should note that harassment occurred within a social context. It has been found that the UK Act has been used against harassment that occurred as a result of racism and homophobia. The submission would highlight the problem of harassment followed by recommendations. Black lesbian women living in townships and rural areas were particularly vulnerable to harassment. They were much less likely to access justice, protection and support. There was a study conducted by the organisation where it interviewed lesbian and bisexual women living in rural and peri-urban areas in the Western Cape. Close to half of the participants reported experiences of sexual harassment in a public place. One of the participants said that “They harass us. They ask my girlfriend why she’s dating a tomboy. They tell me that they ill rape me to make me right.”  

There was a need for legislation that protected persons against harassment based on discrimination. Remedies that were available to victims had to be broadened. Triangle Project recommended that the Bill had to take greater consideration into Chapter 9 of the Constitution. Harassment based on discrimination and prejudice had to be acknowledged in the Bill. The definition of harassment contained in the Promotion of Equality Act had to be incorporated in the Bill. Sanctions should be put in place to prohibit the police and prosecuting authorities and the court for from exposing victims from marginalised groups to secondary victimisation. Clear policy and practical provisions must be made in both the Protection from Harassment Bill and the Domestic Violence Act to enhance the access of impoverished, rural and marganilsed communities to the remedies available in this legislation. The Bill should place an onus on the police to investigate harassment in situations where the complaint cannot identify the alleged perpetrator’s name and precise location or address.  A clear policy framework was necessary to guide and monitor the implementation of harassment legislation.

Discussion
Ms Schaefer said that she did not understand why the Bill had to address a specific category of people. Everybody was included under the Bill having the inclusion of a category of person was not going to provide extra protection.

Mr Jeffery said that the Bill was about the conduct of harassment it did not deal with the reasons why that conduct was occurring. Harassment based on sexual discrimination was already covered in the Bill as the Bill was a law of general application. Could there be an elaboration on the recommendation that stated “Sanctions should be put in place to prohibit the police and prosecuting authorities and the court for from exposing victims from marginalised groups to secondary victimisation”.

Ms Henderson said that there had to be a shift in the understanding of the implementation of legislation of this kind from law enforcement agencies. In practice this legislation tended to not be accessible to lesbian, gay and transgender people because of the prejudices within the criminal justice system. If a specific category of provisions dedicated to lesbian, gay and transgender people was included in the Bill then it would shift the attitude of the implementers of the Bill namely law enforcement agencies within criminal law. The Triangle project was arguing for the inclusion of harassment cases on various discriminatory grounds including sexual orientation and gender identity. Secondary victimisation was a very real problem within the criminal justice system. There had to be disciplinary measures against officers who were discriminatory against lesbian, gay and transgender people.

Ms Schaefer challenged the last mentioned recommendation and said that the proposal had failed under the Domestic Violence Act as police did not take cases where women were involved seriously. If people continued to discriminate on sexual grounds even though it was expressly prohibited under the Constitution do you seriously think it would change attitudes if we included it in this Bill?

Ms Henderson replied that South Africa had a general problem in the implementation of legislation this did not mean that we had to stop legislating.

Women’s Net submission
Ms Sally Shackleton, Representative of Women’s Net presented to the Committee that the organisation was a non-profit organisation that focused its attention of information and communication technologies as a development opportunity. For the past year we have run a campaign for young people to us MXit and Facebook safely and responsibly. A person may not be directly contacted but the commission of harassment might still happen. An example of this might be a video of someone being put up on you tube without their consent. An anonymous stalker who harasses via the internet on platforms like Facebook should be identified by service providers in order to assist law enforcement officers. There should be a time frame in which the service providers had to give law enforcement officers information. 

Discussion
Mr Ndabandaba asked if the organisation offered financial support to young girls and how useful was MXit to young people? 

Ms Shackleton replied that the orgnisation did not provide financial aid due to funding constraints.  The organisation did however encourage young girls to go into the science and technology fields. Young people believed that their cell phones and hence chat platforms were very useful to their lives.

Women’s Legal Centre & Reach submission
Ms Chenth Sanger, Attorney at the Women’s Legal Centre presented to the Committee that the Women’s Legal Centre (WLC) was a non-profit orgnisation that advanced women’s rights. The organisation also focused on a lot of gender based violence. The implementation of this Bill was very similar to the implementation of the Domestic Violence Act which was not being implemented properly. There was a failure on the part of the police to properly implement the imminent harm provision in order to assist and protect women. As a solution; the Committee should consider expanding the definition of harassment and include certain factors that had to be consider when a police member made a decision to whether or not to make an arrest where there was a complaint of imminent harm. The inclusion of a definition of reasonable belief could make things easier for when a Magistrate or police member had to make a decision on what to o in a particular situation. There should be an imposition of a greater burden on the clerks of the court to assist complainants when they completed affidavits.

Ms Stacey Manack, Attorney at the Women’s Legal Centre continued by stating that her part of the submission would focus on the sex workers and how the Bill would affect them. Sex work was currently criminalized and it was because of this that women involved in sex work were particularly vulnerable and therefore did not generally report crimes committee against them. The crimes committed against them included harassment. The Bill, if enacted as it was would encourage sex workers to access justice where the Domestic Violence Act did not provide it.

Ms Claudio Lopes, Representative of Reach informed the Committee that the organisation assisted women on farms who experience sexual violence. The Bill was fully supported by the organisation. It should be noted however that the Domestic Violence Act was a failure in terms of implementation especially for women farm workers. It was important that clerks of the court provide assistance to women farm workers especially those who experienced language barriers.

Discussion
Mr Sibanyoni asked Reach assisted women farm workers who were indigenes.

Mr Ndabandaba asked if the use of the term sex workers included males as well.

Ms Lopes replied that the use of the term sex workers did include males as well. The organisation did provide support for Xhosa speaking farm workers.

The Chairperson thanked those who had presented and informed the Members that the hearings would reconvene after lunch.

Afternoon session
Tshwaranang Legal Advocacy Centre submission
Ms Lisa Vetten, Senior Researcher and policy Analyst for Tshwaranang presented to the Committee that Tshwaranang Legal Advocacy Centre was established in 1996 in order to eradicate the victimization of women by the legal system. The organization had taken an interest to the Bill as it was similar to the Domestic Violent Act. The organization supported the definitions as contained in the Bill. Tshwaranang Legal Advocacy Centre suggested that the Bill should stipulate that even one single instance of harassment should be defined as harassment. A catch all provision should be included which would read as follows: “any other controlling, unwanted o abusive behviour towards a person or related person, where such conduct harms or may cause imminent harm to, the safety, health or well-being of the person or related persons.”  It would be important to impose time frames as to when a court should consider an application order. It should be specified that an applicant should never have to apply for a protection order unless they were accompanied by a police officer. A final order should also be granted as soon as possible. It was recommended that the courts should be empowered to order the police to undertake a though investigation into the identity and hereabouts of a perpetrator. The Bill should be cross-referenced with RICA and the Electronic Communications Act in order to curb stalking that occurred via the internet mobile phone.

There also should be a cross reference between the Bill and section 90 of the Electronic Communications Act where harassment that occurred via electronic communication outside of the Republic could be addressed. In 2003 there was a guideline circulated to police members setting out how complaints involving children who were being stalked should be dealt with. It was suggested that these guidelines should be elevated to the status of National Instructions. There should be training programmes available for law enforcement agencies. Harassment and stalking were very difficult matters they should be added to the mandate of the Family Violence and Child Protection and Sexual Offences Unit of the police.

Discussion
Mr Jeffery asked if the definition of harassment that spoke to harassment via electronic communication was not adequate enough. I had conversed with the officials earlier and they were of the view that cyber stalking was covered. I think that the word ‘reasonable’ was adequate where time frames were concerned. The Bill did not mention a complainant serving the protection order themselves; it would seem that officials would do this. The monitoring of this Bill could go the civilian Police Inspectorate just like the Domestic Violent Act.

Ms Vetten replied that applicants seeking protection orders were often asked by police to serve protection orders themselves so it would be useful if it was made explicit in the Bill that if this did happen then they should be accompanied by a police officer. My I please get back to the Committee on the electronic communications and cyber stalking question vi a written submission at a later stage.

Southern African Catholic Bishops Conference submission
Ms Lois Low, Researcher for the Southern African Catholic Bishops Conference (SACBC) presented to the Committee that the Catholic Church was concerned with the plight of vulnerable persons and this Bill dealt directly with these types of persons. Many vulnerable groups in society were subject to harassment and physical harm, for example many refugees were harassed and experienced harassment on a daily basis.  The SACBC could like to recommend that there should be education programmes countering such prejudices. The Bill was welcome as it addressed many of the lacunae in the Domestic Violence Act. There was no definition of stalking in the Bill and clarity was needed in terms of its interchangeable us with harassment. The word stalking should be added to sub-paragraph (a) of the definition of harassment. It was unclear whether ‘mobbing’ or ‘hazing’ were included in the definitions contained in the Bill. Sexual harassment was not addressed in the Bill and SACBC suggested that this should be corrected.  The provisions for firearm control were welcomed in the Bill. The Instructions and Directives were also welcome, in particular the training provisions for police members and court clerks.  The SACBC was mindful of the grey areas in the Bill for example it could be used against civil society and journalists. The experience with the UK Act has been that although intended for stalkers, the Act was used by corporates against peaceful protestors to stifle legitimate protest. Measures should be put in place in this Bill to prevent such exploitation.

Discussion
In reply to Mr Jeffery saying he would like more information on the UK Act, Ms Law said that she would provide this.

The Chairperson thanked Ms Law and asked her to send her gratitude to the SACBC. The Committee was grateful to all submittants and all submissions would be considered during deliberations.

Meeting adjourned.