Protection of Personal Information Bill: Possible exemption for journalists: SA National Editor's Forum submission

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Justice and Correctional Services

15 February 2011
Chairperson: Mr L Landers (ANC)
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Meeting Summary

The Technical Committee reported back to the Committee on the possibility of the Press being excluded from the ambit of the Protection of Personal Information Bill. Members outlined their parties’ positions. The ANC had some concerns around the exclusion of journalists under Clause 4(d) of the Bill, pointing out that this Bill was not about the regulation of the media, but about the protection and processing of personal data. Whilst the ANC did not wish to curtail journalistic freedom, it did want to guard against exclusions being used by other bodies who fell under the scope of the Bill. It was also concerned that a complete exclusion would not be in conformity to the European Union directives. The DA believed that it was necessary to have an exemption for journalists, and had proposed that the option suggested by Dr Dario Milo should be accepted. Although South Africa would indeed be unique in having this exclusion, the decisive principle was that data privacy laws were desperately needed to curb abuse of personal data, primarily by marketers, and that the ANC’s concerns could be addressed by including a definition of “journalism”, pointing out that the European Court of Justice had a definition. The IFP believed that it was the activity, and not the trade, that needed to be exempted, but did not believe that a definition was needed.

The South African National Editors Forum (SANEF) then indicated that it was not in support of having an exemption for journalists, nor a definition for journalists or journalism. It did not want journalists to be put in a special category, since journalists believed that they had neither any extra powers nor any lesser powers than the ordinary individual, and that freedom of expression must apply to every individual. An exemption for the media would be inconsistent with the self-regulatory system. It was similarly not desirable to have a register, which implied the danger of journalists being able to be removed from the register for political reasons, and which would prevent an ordinary person who was not registered from submitting articles to newspapers.

Members were surprised at these views. ANC Members said that the exclusion clause could be deleted, but questioned if this was really what SANEF wanted, and whether it had canvassed this fully with all its members and with ordinary journalists. They maintained that if there was to be exclusion, then there must be a definition. They asked why SANEF had viewed the Bill as restrictive, noting that other professional organisations were regulated. The DA believed that SANEF was not promoting its own interests, and pointed out that, if not excluded, journalists could be sued under the common law, as well as for civil claims under the Bill. The IFP believed that the Bill would apply to everyone who was economically active and that the Regulator would define the application of the Bill, and develop a code, and that those who did not present a problem to privacy would be exempted whilst the Bill would address the problem areas. South Africa should also look at the approach adopted by North America. The ACDP struggled to understand SANEF’s objection to an exemption, particularly since SANEF had already sought exemption from other pieces of legislation, and urged SANEF to consider the impact of its submission on those applications. SANEF requested a short recess to discuss the position, and, on its return, clarified that it did not want to oppose the Bill, but to find a compromise, and said that if a definition of journalist were to be included, then it would want to canvass its own members as to how it should be worded. SANEF asked, and received confirmation, that it was possible for SANEF representatives to sit with the Technical Committee to resolve some issues, and proposed that SANEF should revert to the Press Council and propose that a clause relating to personal data protection should be inserted in the South African Press Code, which would then oblige signatories to the Code to comply. The Committee agreed that SANEF representatives should engage further with the task team in the meantime on other issues.


Meeting report

Protection of Personal Information Bill (the Bill): Possible exemption of journalists
The Chairperson requested that the members of the Technical Committee should present their views on whether journalists should be excluded from the application of the Protection of Personal Information Bill (the Bill).

Mr J Jeffery (ANC) said that there were concerns about the exclusion of journalists under Clause 4(d) of the Bill. The Bill was not about the regulation of the media, but was rather about the protection and processing of personal data. The ANC did not want to curtail the media or journalistic freedom, but it did not want any exclusions to be used by other bodies that would fall under the scope of the Bill. The State Law Advisors had also pointed out that if there was a complete exclusion, then Bill would fall short of complying with European Union requirements. The ANC did not want to undermine the freedom of the media, but it also wanted to ensure that there were no gaps.

Ms M Smuts (DA) said that the option put forward by the DA in the working draft of the Bill was the one proposed by Dr Dario Milo. This was an outright exclusion of journalists from the scope of the Bill. She noted that it read: “This Act does not apply to the processing of personal information, by any person, of any journalistic, literary or artistic material.” South Africa would be unique in the world if it had this exclusion. She said that the common law was the proper tool to deal with the conflict between free speech and privacy. The decisive consideration would be the sheer incompatibility of the data privacy principles with the craft of journalism. Data privacy laws were badly needed, to cure the abuse of personal data, especially by unscrupulous marketers. It would be possible to address the ANC’s concerns by drafting a definition of “journalism”. The European Court of Justice had a definition, which set out that activities may be classified as journalistic activities if their objective was the disclosure to the public of information, opinions or ideas. This was irrespective of the medium used to transmit. The information, opinions or ideas were not limited to media undertakings and may be undertaken for profit making purposes.

Dr M Oriani-Ambrosini (IFP) said that what had to be exempted was an activity. The press was the only business in the world that was exempted, and this ought not to be defined. There should be an exclusion of an activity, but with no definition.
 
South African National Editor’s Forum (SANEF) submission
Mr Mondli Makhanya, Chairperson, South African National Editor’s Forum, said that SANEF welcomed the discussions around the development of an exclusion for journalists. He cautioned that there could be some danger in creating a definition for a journalist and for journalism. It would also not be desirable to create the situation where there had to be a form of registration for journalists.

Mr Raymond Louw, Deputy Chairperson, SANEF Media Freedom Committee, said that everything else hinged on whether an exemption for journalists would be allowed. The problem with an exemption was that it would put journalism in a special category of its own. This could be one of the reasons why there was no exemption in other parts of the world. A portion of the preamble of the South African Press Code (SAPC) read as follows “The basic principle to be upheld is that the freedom of the press is indivisible from, and subject to the same rights and duties as that of the individual, and rests on the public’s fundamental right to be informed and freely to receive and disseminate opinions and information.” If there was an exemption for the media, there would be an immediate problem with the self-regulatory system. The basic principle of journalism was that journalists had neither any extra powers nor any lesser powers than the ordinary individual. Journalists were not in a class of their own. Dr Dario Milo’s suggestion was impressive but it placed the status of journalists above that of an ordinary individual. One of the reasons why journalists did not believe that they should have a different status was that journalists believed that freedom of expression should apply to all citizens and not just journalists. Journalists could not depart from the fundamental principle that they were no better or worse than the ordinary citizen.

An immediate concern around the advent of this Bill and with the possibility of an exemption was that this would then require a definition of a journalist. The objection against having a register was that this also implied a danger of being removed from it. The experience of other countries was that registers were normally used for political reasons and agendas.  Registration also implied that an ordinary person who wanted to submit an article to a newspaper would not be able to do so if he or she was not registered to do so.

Discussion
Mr Jeffrey commented that this submission posed some difficulty in deciding now which way the technical committee should proceed. There was a need for this Bill. It would not be a problem to deleting the exclusion clause, so that there was consistency with the Press Code, so that the Bill would apply to the Press in the same way as it applied to everyone else. He questioned if this was what SANEF wanted. If there was to be exclusion of the Press, then there had to be a definition. The ANC wanted to guard against individuals releasing personal information under the guise of journalism.

Ms Smuts said that she would not be able to assist SANEF if it argued against its own interests. A journalist, like every other person, had to respect the privacy that was enshrined in the Constitution. This Bill had to do with data protection and even if journalists were to be excluded from the Bill, they would not be excluded from complying with the obligation to ensure privacy that was in the Constitution. If they requested that they should not be excluded from the Bill, journalists would fall under a regime where they could be taken to court under the common law, as well as facing civil claims under the provisions of this Bill. The Bill provided for both patrimonial and non-patrimonial loss, which was a double jeopardy. Under such a regime, a person who was sued would have to prove that he or she was a journalist and a Regulator would decide if a journalist acted in good faith. This Bill was not about the registration of journalists, and it was not correct to draw a direct corollary from a definition of journalism crafted by the European Court of Justice (ECJ) to the registration of journalists under this Bill.

Dr Oriani-Ambrosini said that the Bill would apply to everyone who was economically active. The Regulator would define the scope of application of the Bill, and hopefully this would be done in a reasonable manner. The general problem was the extent to which the obligations in the Bill were applicable. The Regulator should be established and empowered to develop a code. Once this was done, that code would be applied to a category of individuals, and the applicability provisions became important. The Bill would not apply to everyone, but would apply within the ambit of those defined categories or industries. In this manner the media would be exempted, because it did not present a problem, but the marketing companies, who were problematic, would be targeted. The problem with this approach was that it would not be in conformity with the European Union (EU) Directive, but South Africa was not part of the EU. In North America the opposite approach was regularly chosen, and this was a point that South Africa should consider.

Mr S Swart (ACDP) said that it was hard to understand SANEF’s objection to an exemption. Opposition parties, in particular, supported the free flow of information. The question was whether the standpoint taken now would have an effect on the other requests for an exemption for the media where other pieces of legislation were concerned. For instance, the media had requested exemptions in respect of the Protection from Harassment Bill, the Films and Publications Amendment Bill (to avoid pre-publication censorship), and there were requests and consideration being given to the possibility of a public interest defence for journalists in respect of the Protection of Information Bill, which was concerned with State information. SANEF should re-consider its position. He found it strange that SANEF should adopt that approach, which seemed to fly directly against its own interests. The logical direction in which to move was to agree to an exemption, as this would impact upon other pieces of legislation where SANEF had made representations.

Mr G Ndabandaba (ANC) asked how SANEF came to view the Bill as restricting the work of journalists, given that most professional organisations were regulated in some way. SANEF members should not be treated differently from, for example, lawyers and doctors.

Ms V Mentor (ANC) asked whether the SANEF view had been broadly canvassed amongst other ordinary journalists.

Mr Makhanya requested that he be given a short recess to discuss a few issues with the SANEF delegates, before responding to Members’ comments. There seemed to be a slight misunderstanding of SANEF’s position. SANEF did not want to fight the Bill, but wanted to find a way forward. SANEF was not opposed to an exemption, but the presentation had raised certain issues that had been flagged. If the Committee decided that there must be a definition of journalist, then SANEF wanted to canvass views from its own members as to what such a definition should include.

Mr Jeffery commented that the key issue for the SANEF delegation would be to decide upon the best way to process. It seemed that there was still some engagement to be done amongst SANEF members themselves.

Mr Brandon Boyle, Council Member, SANEF, asked if there was any precedent that would allow some SANEF members to be allowed to sit in with the Technical Committee and work through the Bill to resolve certain issues.

Mr Jeffery replied that there was no problem with this suggestion, and this process had been followed when deliberating on some other legislation.

Mr Louw clarified to Mr Swart that SANEF had opposed the Protection from Harassment Bill, but had not applied for an exemption. SANEF had applied for an exemption in the Films and Publications Amendment Act, on the basis that the issues that were being dealt with under that Act would be dealt with by the Press regulatory system. 

The Chairperson allowed for a short recess to allow the SANEF delegation to consult.

On return from the recess, Mr Makhanya informed the Committee that SANEF could propose a way in which the process could be moved forward expeditiously. He noted that the views expressed by SANEF resulted from extensively canvassing of its members and affiliates.

Mr Louw said that SANEF did not approach legislation on the principle that if the legislation was not opposed by SANEF, then SANEF would be faced with something worse. Instead, SANEF took the view that areas of concern that would affect journalists would be raised in legislation, and the possible consequences that would follow if the legislation were to be enacted were not the function of SANEF. He proposed that the delegation from SANEF should go back to the Press Council, and propose that a clause relating to personal data protection should be inserted in the South African Press Code. Signatories to the Code would then be accountable to comply with its provisions. If the Press Council agreed, then SANEF would apply for an exemption from this Bill.

Mr Jeffery agreed to the proposition. The next issue was then to decide what the nature of that exemption should be, and whether there was a need to define a journalist.

Ms Smuts said that it seemed that the position of SANEF would be exactly as it stood in the Bill.

Ms D Schaefer (DA) agreed with Mr Jeffery that a definition of journalists would be quite critical. 

The Chairperson commented that the engagement had been interesting. He noted that in the meantime, SANEF should engage with the Technical Committee.

The meeting was adjourned

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