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Send  Share  RSS  Twitter  30 Mar 2012

THE LAW: Canny Amendments to the Protection Of State Information Bill


Recent Gauteng Business News

Canny amendments to the Protection of State Information Bill of 2011 (the Bill) might suffice to persuade a majority of Constitutional Court judges that the measure now passes constitutional muster, says the South African Institute of Race Relations. The amendments genuflect towards the Constitution’s guaranteed right ‘to receive or impart information’. However, they are likely to mean little in practice.

The Three Safeguards of the Protection of State Information Bill

The current Bill contains three key safeguards. First, it emphasises the importance of guaranteed rights to free speech and access to information. Second, it states that information may be classified only where ‘demonstrable harm’ to ‘national security’ would otherwise result, while national security is now quite narrowly defined. Third, the Bill is emphatic that classification ‘may not under any circumstances be used to conceal an unlawful act or omission’, cover up ‘incompetence or administrative error’, or ‘limit scrutiny [to] avoid criticism’.

But three key problems also remain. First, hundreds of organs of state will still be able to acquire the power to classify, increasing the likelihood of chronic over-classification. Second, classification decisions will not be open to independent review. Third, the right to appeal against such decisions will be severely circumscribed.

The Penalty for Having Any Knowledge of Classified Information

In addition, the penalty clauses threaten journalists and other commentators with substantial periods of imprisonment not only for ‘communicating’ classified information but also for merely ‘possessing’ or ‘receiving’ it.

Says Dr Anthea Jeffery, Head of Special Research at the Institute: “The Bill also indicates that a person who ‘intentionally accesses…any classified information without…permission to do so’ is punishable by a prison term of up to ten years without the option of a fine. This penalty is as severe as that for intentionally hacking into a state computer.

“This clause suggests that any journalist, academic, MP, or other person who opens and reads an e-mail attachment that happens to contain classified information could immediately be vulnerable to imprisonment, merely for having perused it without knowing it be classified.

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