SANEF, SOS Coalition and MMA: Joint Submissions on the Critical Infrastructure Bill

1. SANEF, SOS Coalition and MMA: Joint Submissions on the Critical Infrastructure Bill Security and Justice Committee, NCOP 7 November 2018

2. Overview • Who we are • Welcoming the Critical Infrastructure Bill • Insufficient protection for the SABC • Unconstitutional limitations on practising journalism • Conclusion

3. Who we are • SA National Editors Forum (SANEF) • SOS Coalition in Support of Public Broadcasting (SOS Coalition) • Media Monitoring Africa (MMA) • Civil society organisations all involved in media freedom and working to improve the media landscape in South Africa

4. Welcoming the Critical Infrastructure Bill • We welcome most of the Bill – particularly as B22B – 2017 has a number of improvements over B22 - 2017 • SA is leading the way in repealing repressive Colonial/Apartheid-era legislation and replacing it with progressive laws • The repeal of the PW Botha era-National Key Points Act, 1980 (NKPA) is welcomed. • Problem: some provisions are still unconstitutional

5. Insufficient protection for the SABC • SABC is designated as a National Key Point in terms of the NKPA. • SABC is subject to regulations passed in terms of the NKPA re: security guards and security staff (Notice 1731 in GG 8338 dated 13 August 1982).

6. Insufficient protection for the SABC • Problem: s2A(1)(b)(ii) of the National Strategic Intelligence Act, 1994 (NSIA): The relevant members of the National Intelligence Structures may conduct a vetting investigation in the prescribed manner to determine the security competence of a person if such a person… is rendering service… which service may… give him or her access to areas designated national key points in terms of the National Key Points Act, 1980.”

7. Insufficient protection for the SABC • State Security Agency (SSA) has used s2A(1)(b)(ii) of the NSIA to require non-security staff at the SABC, more specifically editorial staff, to fill in a detailed and invasive security vetting questionnaire including information about family members, previous relationships.

8. Insufficient protection for the SABC • The power is discretionary ie not legal requirement for under the NKPA for non-security staff to be vetted • Were non-security personnel at a NKP intended to be part this vetting as part of the NSIA? • No recognition that the SABC is a sui generis NKP.

9. Insufficient protection for the SABC • Vetting of SABC journalists is intimidatory and puts SABC journalists “under watch” of the SSA • The NSIA power is being exercised in an unconstitutional manner • Violates the right to freedom of the press s16(1)(a) of the Constitution.

10. Insufficient protection for the SABC • We request the introduction of a new section 24 of Chapter 3 of the Bill: “Specific Protections for the SABC as the independent public broadcaster 24. In recognition of the vital role that the SABC, the independent public broadcaster, plays in ensuring that the public has access to a wide range of news and information, nothing in this Act shall require the security vetting, other than of the SABC’s security staff, of the SABC staff, in particular, no journalist or non-security staff member shall be required to disclose any communication undertaken in the course of his or her employment and sources of journalistic information as a result of the SABC being declared critical infrastructure and/or a critical infrastructure complex.”

11. Insufficient protection for the SABC • This would not prevent any SSA security scrutiny of any SABC journalist should there be reasonable grounds to consider him/her a real security threat but would avoid routine scrutenising of SABC journalists. • Will require consequential numbering changes

12. Unconstitutional limitations on practising journalism • Bill contains severe penalties for violations re: critical infrastructure. • Penalty of up to 3 years imprisonment is provided for in s26(1) for activities that could be described as journalism: • Sections 26(1)(a), (b), (e) and (f) including: • Publishing information • Being at or taking photos of critical infrastructure • While these must be done “unlawfully” that is not defined – potential chilling effect on reporting.

13. Unconstitutional limitations on practising journalism • While the offence provided for in s26(1)(a) provides that this is subject to: • Protected Disclosures Act, 2000 • Prevention and Combatting of Corrupt Activities Act, 2004 • Any other act of Parliament that provides for the lawful disclosure of information. None of the above protects journalists from reporting in the public interest • We need a limited public interest override applicable to s26(1)(a), (b), (e) and (f).

14. Unconstitutional limitations on practising journalism • We suggest a new subsection 26(3): “(3) Notwithstanding the provisions of sub-sections (1)(a), (b), (e) and (f), where a disclosure of information regarding critical infrastructure would reveal evidence of: (a) a substantial contravention of, or failure to comply with, the law; or (b) an imminent and serious public health, safety or environmental risk; and (c) the public interest in the disclosure clearly outweighs the harm in question, the disclosure and related activities falling within those listed in section 26(1)(a), (b), (e) and (f), shall be lawful.” • Will require consequential renumbering of existing s26(3) to s26(6).

15. Conclusion • We have suggested: • a new clause 24 to protect SABC journalists from routine SSA scrutiny • a new subsection 26(3) to protect journalism. • If made, the Bill will find the elusive balance between protecting the public interest in: • legitimate national security interests • a free press and the free flow of information

16. Thank you Questions?