THEME 2
CHAPTER 5
The disclosure of information
LEARNING OUTCOMES
LEARNING ACTIVITY 5.1
5.1 INTRODUCTION
5.2 THE DUTY TO DISCLOSE SOURCES OF INFORMATION
5.3 THE COMMON LAW DUTY NOT TO DISCLOSE SOURCES OF
INFORMATION
5.4 CLAIMING INFORMATION FROM ANOTHER - THE PRO- MOTION
OF ACCESS TO INFO...
LEARNING OUTCOMES
LEARNING ACTIVITY 5.1
5.1 INTRODUCTION
5.2 THE DUTY TO DISCLOSE SOURCES OF INFORMATION
5.3 THE COMMON LAW DUTY NOT TO DISCLOSE SOURCES OF
INFORMATION
5.4 CLAIMING INFORMATION FROM ANOTHER- THE PRO- MOTION
OF ACCESS TO INFORMATION ACT 2 OF 2000
5.5 THE PROTECTION OF PERSONAL INFORMATION ACT 4 OF 2013
5.6 INTERCEPTION OF COMMUNICATION
5.7 PROTECTION OF WHISTLE BLOWERS
FEEDBACK
POINTS TO PONDER
LEARNING ACTIVITY 5.2
DISCUSSION FORUMS
LEARNING OUTCOMES
After you have studied this chapter, you should be able to
• indicate a l l the different situations in which t h e legal
system places a duty upon you to disclose information (You
should furthermore be able to distinguish between the types
of information that have to be disclosed in each case.)
• indicate the various situations in which the common law
places a duty on you NOT to disclose information
• explain the legal principles that apply when an outsider wishes
to tap your telephone or open postal articles addressed to you
LEARNING ACTIVITY 5.1 - CASE STUDY
Five major banks are robbed of huge sums of money in the space of a few
, days. During the last robbery one of the bank tellers who wanted to sound the
alarm, was shot by one of the robbers. You are ajournalist employed by a
local newspaper. This soon becomes a sensational story. During your
investigation you find someone who has information which seems to
implicate t h r e e prominent b u s i n e s s m e n .These businessmen are
allegedly members of a crime syndicate which played a key role in the bank
robberies. However, the informant says he will talk to you only on
condition that he can remain completely anonymous. You agree and he gives
you detailed information regarding the activities of the crime syndicate as
well as the role played by the three businessmen. You write an article
based on this information and based on the information obtained during
your own investigation, and you publish it in the newspaper. Not long
afterwards you receive a subpoena to appear in court. The prosecutor
wants to put you on the witness stand and have you answer detailed
questions about what information you heard and who gave you the
information.
May you refuse to answer these questions in court, without going
? to jail and would it be a breach of the ethics of the journalistic
profession if you did answer? May the state tap your telephone and/ or
open your postal articles in the hope of intercepting the communica- tions
between you and the informant and ultimately in the hope of obtaining the
information which will help the police to apprehend the bank robbers?
May the police claim insight into the financial records of the businessmen
in order to determine whether their normal business could have created
the funds which they have at their disposal? If this information may be
claimed, may the police furthermore check it with the information in the
records of the Receiver of Revenue?
5.1 INTRODUCTION
The Constitution of the South African Society of Journalists provides that "[a] journalist
shall protect confidential sources of information". However, it often happens that
journalists may possess information that would be useful to the litigants in a civil case or
the prosecution or defence in a criminal case. Journalists may then be served with a legal
document called a subpoena. The subpoena orders a person who has evidence relevant
to a legal proceeding either to testify in person or to turn over any physical evidence such
as documents, tapes and photos in their possession. Subpoenas are issued by lawyers in
both civil and criminal cases. The one who receives a subpoena may not ignore it.
Failure to comply with the subpoena without showing legal justifica- tion for the failure
is an offence and may lead to a fine or a jail sentence for contempt of court.
Once again we have two conflicting interests. On the one hand there is the right
to freedom of expression which includes freedom of the press and other media and
freedom to receive and impart information and ideas.
In allowing journalists to refuse to disclose confidential sources of information, the
interests of public confidence are served. It often happens that news sources will reveal
critical information to journal- ists only if the journalists promise the sources that their
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