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    Limiting Media Freedom on Grounds of National Security

    Module 9: National Security

    Despite the above provisions in international law that allow the exercise of the right to freedom of expression to be limited on grounds of national security, provided that this is explicitly provided by law and that the restriction is necessary and proportional in an open and democratic society, in practice, national security is one of the most problematic areas of interference with media freedom.

    One difficulty is the tendency on the part of many governments to assume that it is legitimate to curb all public discussion on national security issues.  Yet, according to international standards, expressions may only be lawfully restricted if they threaten actual damage to national security.

    In South Africa, the Protection of State Information Bill (known as the Secrecy Bill) was ardently opposed by media and civil society for many years for likely having “a chilling effect on the media and [probably stopping] many whistleblowers from leaking sensitive or embarrassing information to the media.”(1) Constitutional scholar Pierre de Vos, argued that although this was a side effect of the Bill, its real intent was to:(2)

    “[Shield] the various intelligence agencies and structures from too much scrutiny and [ensure] that the ordinary constitutional checks and balances that apply to other organs of state that exercise public power would not apply to the intelligence services.”

    The Secrecy Bill is an example of how national security legislation can both unintentionally or intentionally stifle media freedom.  Likewise, Kenya’s anti-terrorism regime, including most notably the 2018 Prevention of Terrorism Amendment Bill, have been criticised for undermining human rights in an effort to protect national security.(3)

    The Johannesburg Principles

    In 1995, a group of international experts drew up the Johannesburg Principles on Freedom of Expression and National Security.(4) Although non-binding, these principles are frequently cited (notably by the UN Special Rapporteur on freedom of expression) as a progressive summary of standards in this area.  The Johannesburg Principles address the circumstances in which the right to freedom of expression might legitimately be limited on national security grounds, at the same time as underlining the importance of the media, and freedom of expression and information, in ensuring accountability in the realm of national security.

    In 2013, a group of civil society organisations from across the globe — including many who were involved in the drafting of the Johannesburg Principles — published an updated version known as the ‘Tshwane Principles.’(5) The Tshwane Principles state that:(6)

    • Governments may legitimately withhold information in some narrowly defined areas, such as defence plans, weapons development, and the operations and sources used by intelligence services.
    • Information about serious human rights violations may not be classified or withheld.
    • People who disclose wrongdoing or other information of public interest (whistleblowers and the media) should be protected from any type of retaliation, provided they acted in good faith and followed applicable procedures.
    • Disclosure requirements apply to all public entities, including the security sector and intelligence authorities.

    Although the principles do not constitute binding  international law, they were developed with wide consultation and have broad consensus; for example, they have been welcomed by all three of the special experts on freedom of expression — for the UN, the Organisation of American States (OAS), and the African Union (AU), as well as the Organisation for Security and Cooperation in Europe’s (OSCE) expert on freedom of the media.(7)

    Footnotes

    1. Pierre de Vos, ‘Secrecy Bill less about media freedom, more about national security state,’ on Constitutionally Speaking (2012) (accessible at: https://constitutionallyspeaking.co.za/secrecy-bill-less-about-media-freedom-more-about-national-security-state/). Back
    2. Ibid. Back
    3. Freedom House, ‘Kenya’s Antiterrorism Strategy Should Prioritize Human Rights, Rule of Law’ (2018) (accessible at: https://freedomhouse.org/sites/default/files/2020-02/Final_PolicyBriefKenya_11_14_18.pdf). Back
    4. Article 19: Global Campaign for Free Expression, ‘The Johannesburg Principles on National Security, Freedom of Expression and Access to Information, Freedom of Expression and Access to Information,’ (1996) (accessible at: https://www.article19.org/wp-content/uploads/2018/02/joburg-principles.pdf). Back
    5. Open Society Justice Initiative, ‘Understanding the Global Principles on National Security and the Right to Information’ (2013) (accessible at: https://fas.org/sgp/library/tshwane-und.pdf). Back
    6. Open Society Justice Initiative above. Back