In the midst of ongoing speculation over what will come of the
next round of deliberations on the Protection of State Information
Bill, let us assume momentarily that the bill – despite
its fatal flaws – is passed in its current form.
The bill is currently before the ad hoc committee of the
National Council of Provinces (NCOP).
This means that a document containing state information deemed
to warrant classification may be classified as confidential, secret
or top-secret, which then triggers a number of possible criminal
offences – 14 in total – against a person who
comes into contact with this classified document.
This will inevitably cut down democratic deliberation by
whistleblowers, journalists, editors and community organisations,
but most fundamentally it will affect the public's right to
In the absence of both a public interest and a public domain
defence, an invidious choice will have to be made between opting
not to publish a story or publishing it withthe risk of facing
harsh criminal sanctions.
In this regard, it matters not whether the document has been
wrongly classified – whether as a result of the
classifier's inadvertent, negligent or intentional conduct.
The mere possession and disclosure of it gives rise to criminal
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