(FXI/IFEX) – The following is an FXI press release: RE: Issuing of section 205 subpoena to Mail and Guardian’s on-line host M-Web The Freedom of Expression Institute (FXI) condemns the fact that the state has issued a subpoena in terms of Section 205 of the Criminal Procedures Act to the Mail and Guardian (M&G) Online’s […]
(FXI/IFEX) – The following is an FXI press release:
RE: Issuing of section 205 subpoena to Mail and Guardian’s on-line host M-Web
The Freedom of Expression Institute (FXI) condemns the fact that the state has issued a subpoena in terms of Section 205 of the Criminal Procedures Act to the Mail and Guardian (M&G) Online’s host, M-Web. The subpoena requires the company to hand over records relating to the online publication of an excerpt of an Imvume Management bank statement, as part of the controversial ‘Oilgate’ story. The ‘Oilgate’ story involves a series of investigative reports alleging that the oil company Imvume Management was used to channel R15 million from the state to the ruling African National Congress (ANC) to assist it in running its election campaign in April 2004. The excerpt posted online showed only the part of the bank statement indicating the R11 million that went to the ANC, and not the payments that the gagged article highlighted. The subpoena says the charge being investigated is in contempt of court, apparently because the statement excerpt remained on the website after the gag order obtained earlier against the M&G’s hard-copy publication of the ‘Oilgate’ story.
However, the priority being given to the investigation, coupled with the fact that the commercial branch of the police is involved, and they are using a covert investigative structure, strongly suggests that the objective of the case is not simply to prove contempt of court. Rather the intention seems to be to uncover the original source of the bank statement.
The issuing of the subpoena confirms once again that there is a rapidly unfolding crisis around a fundamental tenet of free expression, namely the right of journalists to protect their confidential sources of information (where sources are taken to include all journalistic material used in the course of generating stories). The nature of the investigation raises the troubling question of whether state resources are being used to plug a politically embarrassing leak on the pretext of a criminal investigation. In effect, the state actions against the M&G risk criminalising investigative reporting dedicated to exposing official malfeasance.
In the FXI’s view, the protection of the constitutional right to freedom of expression will be impossible without journalists being afforded a right to protect their confidential sources of information. This protection should also extend to individuals and companies who are located both ‘upstream and downstream’ from the journalists, such as editors, printers, internet hosts and other service providers who may have access to confidential sources by virtue of their association with journalists. If M-Web is compelled to hand over the records, it will have serious implications for the future of investigative reporting in South Africa as sources may be reluctant to come forward with information on instances of corruption, mismanagement or other forms of abuse of power. In the process, information that should reach the public domain through the media will be prevented from doing so, with profoundly negative implications for freedom of expression.
The subpoena is the third assault on confidential journalistic sources in nearly as many months. Earlier this year, Imvume Management instituted civil proceedings against the M&G in an attempt to force them to reveal their sources in the ‘Oilgate’ matter: a case that still has to be heard in court. Also, the media have been prevented from reporting on documents on the controversial Pebble Bed Modular Reactor project given to environmental activist group Earthlife Africa by mistake by Eskom. The energy parastatal then approached the High Court for an order interdicting Earthlife and the media from using the documents, which were reportedly in the possession of several newsrooms by that stage. This latest incursion on journalistic sources underlines the fact that a lasting solution must be found to this ongoing problem, as the interim arrangement captured in the Record of Understanding between the South African National Editors’ Forum and the relevant Ministries is simply not working.
To this end, the FXI calls on the Ministry of Justice to amend the Criminal Procedures Act to recognise the fact that journalists have a ‘just excuse’ not to reveal sources. Furthermore the FXI believes that South Africa should follow the example of Mozambique, which recognises an absolute privilege for journalists, thereby protecting their right to professional secrecy in relation to their sources of information, and disallowing legal punishment for deciding to remain silent.
