In the course of a judgment regarding unlawful surveillance, the Constitutional Court found that journalists’ sources of information require special consideration and must be protected against disclosure to the extent possible.
Journalists are not expected to reveal the identity of their sources. Freedom of the media is a fundamental requirement for democracy and when journalists carry out their public duty for the public good their sources should be protected. Confidentiality of journalists’ sources is particularly significant in our constitutional dispensation. Therefore the court gave special consideration to this fact when examining whether the Regulation of Interception of Communications and Provision of Communication-Related Information Act, 2002 (RICA) allowed wholesale interception of journalists’ private communications. The court found that RICA is unconstitutional to the extent that, when the intended subject of surveillance is a journalist, it fails to provide for additional safeguards calculated to minimise the risk of infringement of confidentiality of the journalist’s sources.
The court did not suggest that journalists should not be subject to surveillance, which includes interception of their communications. They are not immune from surveillance that is justified and there are reasonable grounds for suspecting them to be guilty of serious criminality or conduct that places the security of the state at serious risk.
[AmaBhungane Centre for Investigative Journalism v Minister of Justice [2021] ZA CC 3]
