November 22, 2011, has been dubbed “Black Tuesday” in South Africa. This is the day the Protection of State Information Bill went before parliament on its way to being rubber stamped into a law that all principled journalists worth their salt will do everything to circumvent. And, courtesy of the nature of the internet, they will be able to do so.
Because, to use a cliched analogy: the stable door has been closed long after the horse of free flowing information has bolted. For all its intimidatory clauses, the so-called Secrecy Bill will not be able to stop information leaking. Nor will it be able to stop such information from being disseminated.
But because the information flow is being driven underground some genuinely harmful information, not in the public interest, may also surface. And all will be anonymous. That is another part of the price we — and the government — will pay for introducing an intimidatory and authoritarian measure.
Intimidation is the major rationale of this Bill: lengthy prison terms are promised for anyone passing on, relaying, holding or publishing information that the authorities regard as secret. But there will always be whistleblowers who are either brave enough, foolhardy enough or simply angry enough, to take the risk to pass on information that should be in the public domain.
There will also be — as there were in the apartheid past — journalists prepared to accept, check, and publish such information. In those years this could be done by sending the information abroad to be published and then — legally — publishing a report domestically of what had appeared abroad.
That loophole has been closed in the new secrecy measure. But all that this means is that the commercial and general mass media will not — under threat of sanction — be able to publish “secret” information that is already in the public domain abroad. However, it will be freely available on the internet and to everyone in South Africa with internet access.
This will herald another era of samizdat — of underground publications — at a time when digital technology makes this much easier than ever before. It is possible that paper and paperless information will flow in a manner and at a level that is impossible to control.
Draconian measures will, of course be threatened and already exist. The country was reminded of this on November 16 in a statement in parliament by state security minister Siyabonga Cwele.
Cwele maintained that “foreign spies” were paying civil society groups to oppose the new secrecy bill. He claimed: “You won’t find foreign spies openly marching in the streets of Cape Town, complaining that we are removing their easy access to our sensitive information. But they will fund their local proxies to defend their illegality.”
Quite apart from its apparent ignorance of the nature and scope of espionage, this statement effectively criminalised groups, such as the SA National Editors’ Forum, Cosatu and others that support the Right 2 Know campaign, placing them within the ambit of the 2001 Terrorism Act. The official explanation for this measure was given at the time as South Africa’s “support to the Americans in the global fight against terrorism” in the wake of the 9/11 attacks.
It defines a “terrorist act” as any that may “cause damage to property… or disrupt any public service [or] the delivery of any essential service to the public [or] create unrest.” The “creation of unrest” could include any political activity in opposition to the government.
Cwele’s statement, therefore, carried an ominous undertone. Intimidation is clearly the name of the game and we have been warned, without any evidence being produced, and by a minister who was so much on top of his job that he was unaware that his wife was involved in a drug smuggling racket.
These latest measures by the government will obviously intimidate many. But they will not be able to keep the lid on information that embarrasses and exposes thieves, rogues, robbers and other miscreants in official places.
By means of encryption, using free programs such as Tor and sending information via internet cafes, using foreign service providers, it will be virtually impossible to trace where information originated. It could then emerge on the internet, without traces to its origin, from servers in countries such as Iceland and Sweden that have much more open information laws than those proposed here.
As a journalist I call on my colleagues to join me, in the meantime, in committing ourselves of the Declaration of Principles on the Conduct of Journalists adopted by the International Federation of Journalists. It contains just nine points:
1. Respect for truth and for the right of the public to truth is the first duty of the journalist.
2. In pursuance of this duty, the journalist shall at all times defend the principles of freedom in the honest collection and publication of news, and of the right of fair comment and criticism.
3. The journalist shall report only in accordance with facts of which he/ she knows the origin. The journalist shall not suppress essential information or falsify documents.
4. The journalist shall use only fair methods to obtain news, photographs and documents.
5. The journalist shall do the utmost to rectify any published information which is found to be harmfully inaccurate.
6. The journalist shall observe professional secrecy regarding the source of information obtained in confidence.
7. The journalist shall be aware of the danger of discrimination being furthered by the media, and shall do the utmost to avoid facilitating such discrimination based on, among other things, race, sex, sexual orientation, language, religion, political or other opinions, and national or social origins.
8. The journalist shall regard as grave professional
offences the following:
• plagiarism
• malicious misrepresentation
• calumny, slander, libel, unfounded accusations
• the acceptance of a bribe in any form in consideration of either publication or suppression.
9. Journalists worthy of that name shall deem in their duty to observe faithfully the principles stated above. Within the general law of each country the journalist shall recognise in professional matters the jurisdiction of colleagues only, to the exclusion of every kind of interference by governments or others.
Cape Town, South Africa-based journalist commentator and author specialising in political and economic analysis and labour matters. 
Terry Bell Writes 
alan wieder
December 2, 2011
This is fabulous but I have to wonder if even an article like this one falls foul of The Protection of State Information legislation. Might interpretation be if you urge journalists to do their work following the Declaration of Principles and Conduct, you are encouraging your colleagues and ‘comrades’ to break the law. More forthrightly, I love that I can read your writing from Muizenberg while I sit on the west coast of the United States — why don’t they understand?
Terry Bell
December 2, 2011
As that old song says: when will they ever learn? You are right, of course, I am, technically, encouraging my colleagues and others to break a future law. But that is precisely what will happen. Until and unless control of the internet becomes possible. However — and happily — that prospect seems remote.